President Barack Obama announces federal appeals court judge Sonia Sotomayor, right, as his nominee for the Supreme Court, Tuesday, May 26, 2009, in an East Room ceremony of the White House in Washington. (AP Photo/Alex Brandon)

Kevin Drum notes that he’s already tired of the “kabuki” that has emerged in reaction to the nomination of Sonia Sotomayor to the Supreme Court.

I both agree that the process is predictable and tedious and that Sotomayor would seem obviously qualified for confirmation.  I would quibble, however, with this:

Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire. Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci.  And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.

First, that she’s Hispanic and female were undeniably major factors in elevating her to the top of the short list.

Second, liberals/progressives are cheering the First Hispanic Justice angle, with Chuck Schumer openly daring Republicans to oppose the First Hispanic Justice and risk backlash from the fastest growing voting demographic.

Third, while I don’t recall any such controversy with Sandra Day O’Connor (who, frankly, was not particularly well qualified) it was widely assumed and continues to be argued to this day that Clarence Thomas (who was objectively qualified for the Court) was a token hire.

Fourth, Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.  I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites.

Fifth, it’s hard to stop the kabuki once it starts.  Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment.  It quickly became standardized and applied to all but the most tepid appointments.  It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.

Sixth and finally, while tedious and absurd when faced with an obviously qualified appointment who will no doubt be confirmed in the end, there has been a realization in recent years of just how important these appointments are.  Supreme Court justices stay on the bench years, even decades, after the presidents who appointed them leave office and decide the most portentious political issues.  I would prefer that the scrutiny be more sober and less theatrical but scrutiny itself is quite warranted.

UPDATE: Matt Yglesias chimes in:

And then there’s Ramesh Ponnuru who dubs her Obama’s Miers. Because, I guess, the qualifications Sotomayor holds only count as qualifications if you’re a white dude.

Now, I think Sotomayor looks qualified (I frankly don’t follow the lower courts enough to have a well-formed opinion) and earned plenty of ire from my side of the aisle for arguing Miers was not.  But I’m getting really tired of diplomas earned in ones 20s being cited as evidence that middle-aged people are/are not worthy of some senior position.  Surely, there are people who graduated SMU’s fine law school who are smart enough to serve on the Supreme Court.  Just as surely, there are people who Peter Principled once on an appellate court.  And, while I don’t think Miers by any means distinguished herself in the role, the list of White House Counsels includes some damned smart lawyers.  Why, many of them went to Harvard and Yale!

There’s a shocking lack of diversity on the U.S. Supreme Court, WaPo staff writer Robert Barnes points out.

There hasn’t been a white Anglo-Saxon Protestant put forward in the five nominations since Justice David H. Souter came to the court in 1990. With Souter’s impending departure, the demographic will be seriously underrepresented on a court that features five Catholics and two Jews.

Of course, as he notes, white guys generally have done okay: “There are seven of them on the current court, and they have accounted for all but four of the 110 justices in the court’s history, who include two black men, two white women, no Hispanics (notwithstanding the disputed Justice Benjamin Cardozo, who served from 1932 to 1938), no Asian Americans and no Native Americans.”  So, perhaps WASPs are not the most likely object of sympathy.

More interestingly, none of the current Justices graduated from a public university or law school.  And every single one of them served as U.S. appellate judges first, making this the first Court so comprised.

As someone with undergraduate and graduate degrees from public universities who has never served as an appellate judge, I’m very sympathetic to the plight of those groups.  Certainly, there have to be dozens of law professors, politicians, think tankers, and others who have the educational background, demonstrated ability to think about complex legal issues at an abstract level, and other attributes required to be a superb Supreme Court justice.   (President George W. Bush tried going outside the appellate judge “priesthood” with Harriet Miers but fell rather short.)

At the same time, however, it stands to reason that the most prestigious law schools and the appellate courts will be the proving grounds for virtually all of the seats on the Supreme Court.  While there are social and economic reasons that will keep some potentially brilliant lawyers from Harvard, Yale, Chicago, Berkeley, Stanford, Columbia, and NYU the reputation and connections of those schools make them the natural feeders for the most prestigious clerkships, professorships, and postgraduate employment options.  The University of Texas or even the University of Alabama are fine schools — and the latter produced Justice Hugo Black — but its graduates are very unlikely to get on the proper “track” to have achieved the milestones likely to impress the ABA, a presidentially appointed search team, and the Senate Judiciary Committee twenty years out of school.

Steve Bainbridge thinks the Republican Party should kick out Bill Kristol and others like him: “The USA does need at least one Daddy party. It needs at least one party that believes in individual freedom and limited government.”

There is a large contingent that wants to kick out RINOs, with rather widely diverging beliefs as to what constitutes a RINO.   Everything from opposing the Iraq War to opposing Harriet Miers to favoring immigration reform seems to qualify one for excommunication.  While Kristol quite frequently gets on my nerves, it’s going to be a mighty small party, indeed, if we insist on ideological purity on all matters.

N.B. – Kristol is just a pundit.   He’s neither in a position to make public policy nor a candidate for office.  He seems a particularly inapt target for our frustrations.

Two lawyer-bloggers who I’ve followed for years are upset with me for buying into the “Sarah Palin was in over her head” meme. Xrlq accused me of drinking “the anti-Palin Kool-Aid” for buying into claims that Palin didn’t know which countries were in NAFTA while Bill Dyer is “genuinely concerned for [my] mental health.”

As to the more “outlandish” claims, such as that Palin thought Africa was a country, I tend to share my colleague Alex Knapp’s view:

Look, I think it’s clear that Sarah Palin didn’t evince much interest in foreign affairs or have a deep knowledge base regarding it. Which was one of my problems with her selection as a VP nominee. But c’mon. Do you really expect me to believe that she didn’t know fifth grade geography? I’m pretty sure you’d have to actually play me a clip of her making that mistake before I actually believed it.

As I noted in the comments to his post, though, having taught plenty of undergraduates who thought Africa was a country or didn’t know where Canada and Mexico were located on a map, it doesn’t strike me as absolutely implausible.   Regardless, the point of the post where I mentioned the charges — and noted that even “if true,” they “seem petty at this juncture” — was that conservatives ought to take the criticisms of more centrist Republicans to heart rather than making support for Palin some sort of litmus test.

The post that has Xrlq and Beldar so up in arms was simply to dismiss Andrew Sullivan’s claim that the press somehow covered up concerns about Palin’s preparedness were absurd on their face.  Rather obviously, the idea that she didn’t know much about foreign policy or the broader swath of national issues grew steadily starting from Team McCain’s decision to shelter her from the press and then blossomed into full force with horrible performances in the Katie Couric and Charles Gibson interviews.

Bill’s criticism of me is much more extensive here. He believes that I am suffering from Palin Derangement Syndrome.

I was tickled to be invited to participate by telephone in his podcast immediately after the Palin announcement in late August, and I agreed with him and the other participants that Gov. Palin was an exciting choice. Some time shortly after that, however, something changed Dr. Joyner’s mind about Gov. Palin.

I invited Bill on the show (which you can listen to here) because he is and was the blogosphere’s most knowledgable Palin observer, having touted her as a VP choice long before she was on most of our radar screens.  What we agreed on was that 1) Palin was definitely causing a major buzz and seemed to have the base genuinely excited and 2) that Palin was at least nominally qualified by résumé for the job.   I stressed, though — drawing comparison with Harriet Miers (another issue where the couselor and I differed) — that her résumé was thin for the office by recent standards.  He agreed, as I recall, but argued that her personal qualities overcame any experience deficit.    We also agreed that Palin’s resume stacked up just fine with Barack Obama’s.

But, no, I was never a huge fan of the pick, as my reaction the moment I heard about the Palin selection makes clear:

Aside from being young and hot-for-a-politician, though, Palin undercuts McCain’s entire campaign theme. She’s got less political experience and less foreign policy experience than Obama.

[...]

I’d never heard of Palin before the VP buzz started on the blogs a while back. She’s supposedly an excellent campaigner. And, obviously, her youth and gender make her a bold pick. Ultimately, though, I think she doesn’t make sense. If you’re running on “the country’s security is too important to be run by neophytes,” you can’t have one as next in line.

While Joe Biden was, twice, an awful presidential candidate, he’s a plausible president. Sarah Palin is not.

[...]

She’s going to make us pine for the days of Dan Quayle, methinks.

[...]

We’ll see what the reaction turns out to be. I’m certainly not the target audience. But McCain’s first big decision is, in my mind, a truly awful one. Obama went traditional but steady in Biden. It wasn’t a bold pick but it was one that butressed his claim that he has judgment even though he lacks experience. McCain has done the opposite here.

He’s incredulous that I “now seriously purport to believe, for example, that Gov. Palin ‘couldn’t even name a newspaper she read.’”  I came to that conclusion only because Palin was unable to name a newspaper that she read in the Palin interview.

Ms Couric asks: “When it comes to establishing your world view, I was curious, what newspapers and magazines did you regularly read before you were tapped for this to stay informed and to understand the world?”

Mrs Palin replies: “I’ve read most of them, again with a great appreciation for the press, for the media.”

Ms Couric: What, specifically?

Mrs Palin: “Um, all of them, any of them that have been in front of me all these years.”

Ms Couric: “Can you name a few?”

Mrs Palin: I have a vast variety of sources where we get our news, too. Alaska isn’t a foreign country, where it’s kind of suggested, ‘wow, how could you keep in touch with what the rest of Washington, D.C., may be thinking when you live up there in Alaska?’ Believe me, Alaska is like a microcosm of America.”

As with the Miers pick, Bill and I simply have a different idea of the criteria for high office should be.  He’s much more of a populist and I’m much more of an elitist in terms of credentialing and expertise.  Miers was nominally qualified to serve on the Supreme Court — and might have done a good job, for all I know — but she wasn’t a distinguished choice.  Ditto Palin as VP.

Palin must be a reasonably bright woman.  Bill’s right that it’s inconceivable that she got elected and re-elected to so many offices over the years, culminating with a state governorship, by being an airhead.  She’s obviously quite charismatic and a strong campaigner.  And I’m sure she knows Alaska issues backwards and forwards.   I saw little evidence, though, that she’s very interested in foreign policy or most issues of American domestic policy.   That doesn’t make her a bad person — she’s in the same boat as most Americans on that score — but it made her a bad choice for the vice presidency.

Victor Davis Hanson has a piece out today that I suspect will be the first of many of its kind. Intermixed with some excellent points about the perception of McCain campaign negativity, the politics of race, and scandalmongering, he aims this cheap shot at Republicans who have expressed dismay at McCain or even endorsed his opponent.

Second, with Obama now with an 6-8 point lead, some in the DC/NY corridor these last three weeks figure it’s time now to jump or at least sort of jump, since the train they think is leaving the station and there might be still be some space at the dinner table on the caboose. They also believe as intellectuals that the similarly astute Obamians may on occasion inspire, or admire them as the like-minded who cultivate the life of the mind-in contrast to the “cancer” Sarah Palin, who, with her husband Todd, could hardly discuss Proust with them or could offer little if any sophisticated table-talk other than the proper chokes on shotguns or optimum RPMs on snow-machines.

This is such utter nonsense. Conservative intellectuals are, by definition, both conservative and intellectual. While many of us understand the practical realities of politics and campaigning, we are ideologues who are motivated by fundamental principles of governing, intellectual consistency, and the ability to coherently articulate the message. While we are “team players,” having generally chosen the GOP as the best vehicle for carrying those ideas into fruition, we’re not party hacks who will publicly adopt positions of convenience for our candidate at the expense of intellectual honesty.

Here at OTB, the authors have broad agreement on general principles but have different emphases and thus different preferences in this election. As is almost always the case with intellectuals, none of us is thrilled with the available choices. I continue to support McCain, albeit less enthusiastically than even a month ago. Alex Knapp continues to support Obama, although never with any great joy. Dave Schuler, a Scoop Jackson-Sam Nunn Democrat by inclination, hadn’t made up his mind as of last Wednesday evening. (The others haven’t, so far as I recall, weighed in.)

I don’t spend a lot of time discussing Proust. To the extent that I’m invited to dinners and parties with smart people, that’s not going to change based on whom I support in November. There are plenty of smart folks on both sides of this one. What would, however, ruin my credibility in those circles is carrying the water for my party in direct opposition to my previous intellectual positions.

I was never a McCain fan, having found his 2000 campaign self-righteous and off-putting. He has been flat out wrong on a number of issues, notably his signature issue of campaign finance “reform.” I came to admire him during this year’s primary campaign, though, for doubling down on Iraq and fighting his party on immigration at a time when both those positions appeared to be political suicide. Once it became clear that Rudy Giuliani was not who I thought he was, McCain became, as I expressed it in a June 2007 post, “my least unfavorite among the 2008 field.”

I’ve defended him against charges and “Outrage of the Day” scandals that I thought were dubious and noted that many things he was doing that I personally found distasteful were well within the bounds of the rough and tumble of the American political system. Then again, I’ve done the same for his opponent.

Yes, I’ve been pretty hard on him for choosing Sarah Palin as his running mate. Not only did she undermine his core message of the importance of experience and “being ready on day one,” but she’s simply the kind of politician that makes me recoil. I object to Palin for the same reason I bitterly opposed the nomination of Harriet Miers to the Supreme Court: neither was “qualified” by traditional standards for the exalted positions for which they were chosen. Miers and Palin were/are both nominally qualified and both probably had the tools to carry out their jobs but given the available talent pool, their selections made no sense.

George Will, Christopher Buckley, David Brooks, Peggy Noonan, Charles Krauthammer, David Frum, Kathleen Parker, and other conservative commentators who are criticizing McCain and Palin are doing so at a risk to their standing, not to bolster it.

So, while I agree with Hanson and others that, given the choices, the McCain-Palin ticket is more likely to preside over policies that conservatives like — or at least block those we don’t like — than the Obama-Biden ticket and, as a resident of suddenly-swing state Virginia will vote accordingly, I’m not going to pretend that it’s the second coming of Ronald Reagan and Morning in America, either.

Those who’ve read my previous commentary on Sarah Palin, notably yesterday’s post on the announcement of Palin as McCain’s VP pick, know that I think she’s a poor choice.  While she has many fans and may be possessed of some remarkable political gifts, she’s a tough sell as “Ready On Day One” and thus undercuts McCain’s best argument against Barack Obama.

On the surface, at least, she’s Dan Quayle and Harriet Miers rolled up into a single package.

That said, I’m rather baffled that the “small town mayor” meme is catching on so readily.

Obama spokesman Bill Burton said, “Today, John McCain put the former mayor of a town of 9,000 with zero foreign policy experience a heartbeat away from the presidency.” National Review’s David Frum, who presumably wants McCain to win, echoed this: “If anything were to happen to a President McCain, the destiny of the free world would be placed in the hands of a woman who until the day before Friday was a small-town mayor.”  (In a companion piece at NR, he dropped the metaphor and simply called her “an untested small-town mayor.”) The phrase appears in dozens, if not hundreds, of newspapers.  (1905 Google News references come up, although presumably a large number of those are duplicate wire service copy.)

These memes are often amusing and sometimes stick.  Jimmy Carter was “the peanut farmer” long after his presidency, even though he’d 1) never farmed peanuts, 2) had been a successful naval officer, and 3) had been governor of Georgia.   Ronald Reagan, who spent eight years governing California, a state with a population and economy that dwarfs most countries, was always “the B-movie actor.”

Granting that Alaska has fewer people in it than quite a few American cities, the woman is in fact the governor of a state.  And, goodness, until four years ago, Obama was a state legislator.  Indeed, one could argue her experience and his are comparable, in that he’s spent almost the entirety of his short time in the Senate running for president.

Neither “small town mayor” nor “state legislator” are usually jobs that we bother to count when assessing presidents and one can argue which is better preparation for Chief Executive.  Ordinarily, only the vice presidency, the Senate, and state governorships are considered relevant experience, although sometimes we issue a waiver for particularly important generals.

The four people on the two national tickets include two, McCain and Joe Biden, who are manifestly prepared to be president using the résumé-at-a-glance test. They’ve both spent decades at the highest levels of government service, including the making of American foreign and national security policy.

A third, Obama, has convinced the Democratic nominating electorate and roughly half the country, judging by the current polls, that he has unique gifts that make him ready despite a dearth of traditional experience.  Even those of us ideologically predisposed against him acknowlege that he’s unusually bright and a quick study.  And the mere fact that he’s been running for president for the last two years has sped his preparation along.

And then there’s Sarah Palin.  Some smart people whose opinions I respect, including Bill Dyer and my colleagues John Burgess and Dave Schuler, are favorably impressed by her. But most of the country had never heard of her before yesterday.   She doesn’t pass the résumé test.  So, she’ll have to persuade the public that she’s ready on the campaign trail, the interview shows, and a debate against Joe Biden.

Photo: STEPHEN NOWERS / Anchorage Daily News file, 2007

Ann Althouse goes apoplectic on a recurring meme that Barack Obama should promise Hillary Clinton the first Supreme Court vacancy in exchange for withdrawal from the race and enthusiastic support. She observes that Clinton “has no judicial experience and has never done anything to indicate that she is any sort of a legal scholar or has anything like a judicial temperament.”

Why not just beg people to vote for McCain? The Senate is going to rubber-stamp whatever unqualified, politicized judicial nominations a President Obama would send its way? Well, then, we must have the opposite party in the White House!

[...]

Miller thrills at the prospect of law as a raw political battle. Democrats who respect the rule of law and want rights to be taken seriously should not cheer at that spectacle. And conservatives will once again get strong traction arguing — as McCain did the other day — that their judges are the ones who are faithfully subservient to the law. I know liberals don’t believe that, but they must present themselves as wanting judges who bring legitimate interpretative skill and diligence to their task and operate independently from politics. Or all is lost.

Now, I think the idea is silly. There’s no way Obama appoints Clinton to the Supreme Court. For one thing, she’s too old. She’d be at least 61 and presidents want someone who’ll be on the Court 20-30 years. Further, why would he award such a prize to someone who has given him so much grief? He’s certain to be the nominee at this point. Sure, presidents have given the VP nod to bitter rivals. But the vice presidency is a subordinate position, not an independent power base.

But, from the standpoint of a liberal president who wants judges to help shape policy, Clinton is surely qualified. She’s got as much judicial experience as Earl Warren or William Rehnquist had when they were appointed. And she’s no Harriet Miers, either, given her Senate experience.

Photo: Comedy Central

Silliness in Congress has morphed into ugliness, including a disruption of the memorial service for recently passed colleague Tom Lantos, NBC’s Mike Viqueira reports.

Republicans are outraged. Democrats are putting forward a resolution holding White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers in contempt of Congress. House GOP rank-and-file are planning a dramatic walk out when the vote is called.

Democrats are affronted. Right in the middle of the Statuary Hall service for the late Tom Lantos, a Republican went to the floor — just steps from the solemn proceedings — and called a procedural vote, apparently out of pique.

Now that’s mature. And a fine display of “family values.”

The incident has led to a game of “but they started it.” Martin Kady II:

Minority Leader John Boehner’s spokesman Michael Steel has put out a statement blaming Democrats for the chaos during Lantos’ service.

“This morning, during the memorial service for Tom Lantos — a public servant beloved on both sides of the aisle — the House Democratic leadership violated an agreement and called the House back into session,” Steel said. “They took this action despite clearly understanding that it would trigger a series of procedural motions. This cheap, cynical political move seems to have been designed to shut down one of the few procedural tools that can be employed by the minority party in the House. Playing this sort of game during the memorial service of a great and good man is beneath the dignity of this House and should be beneath the dignity of Democratic leaders.”

Either way, the disruption of Lantos’ service looks tawdry. Jonathein Stein has videos of the incident and reports Florida’s Lincoln Diaz-Balart was the Republican in question.

Here you can watch C-SPAN interrupt their coverage of the memorial because “the House has been gaveled back into session.”

The juxtaposition of the ongoing memorial and the procedural vote is rather chilling as well:

Warning: The latter also contains the unconscionable butchering of the Beatles song “All You Need is Love.” Which, under the circumstances, is as ironic as the rendition is awful.

The Blue Hair States Edition OTB Caption Contest^TM is now over.

REUTERS/Larry Downing (UNITED STATES)

✰ THE WINNERS ✰

First: Rich – Wow, mom’s got a new hairstyle

Second: McCain – Please no more pictures of grandma’s Bush.

Third: Chip – “Didn’t I see you last week in a ground hog costume?”

HONORABLE MENTION

Steven Taylor – Hey! I thought I sent Harriet Miers to the Supreme Court!

MikeM – Ron Paul will go to any length to meet President Bush.

Steven L. – Reports of a ridiculous cartoon figure roaming the halls at CPAC were confirmed today by this lady . . . .

FormerHostage – …Although “running gag” is what you’d do if you ever saw Helen Thomas nekkid.

ℛODNEY’S BOTTOM OF THE BARREL

Hmmm… I wonder if any of Bill’s old cigars are still left in my desk.

“Dad? is that you?”

Cindy Sheehan finally gets to meet with President Bush

The Monday Contest only has a prickly exterior.

Marc Ambinder sees a “conservative counter-revolution” breaking out on talk radio and the blogosphere wherein the “same forces that joined to force the White House to withdraw Harriett Miers’ Supreme Court nomination” are ganging up against Mike Huckabee’s surging presidential campaign.

Rush Limbaugh, still the most listened-to talk radio host on the planet, has taken to calling Huckabee the “Huckster.” Not even Mitt Romney, in his most profane of moments, goes there.

Limbaugh theorizes that the media is rooting for Huckabee because they know he’s the kiss of death in the general election. And he has compared Huckabee unfavorably to Jimmy Carter — as a snake oil salesman in Southern Baptist garb who later sold his soul to liberals.

Not having listened to Limbaugh in years, I’m surprised he’s so passionately against Huckabee. Indeed, I had to do a quick Google search to verify that he opposed the Harriet Miers nomination.

The two debates are not quite the same. The opposition to Miers was that she seemed to have been picked for her loyalty to President Bush rather than her legal mind, whereas the reaction to Huckabee is much more multifaceted. Fiscal conservatives think he’s too liberal on spending, social conservatives think he’s too liberal on immigration, and libertarian conservatives think he’s too religious.

Still, there are similarities. In both cases, conservative intellectuals rebellied against someone we perceived as unqualified for the office to which they’re aspiring. Miers had a fine career, all the more remarkable for a woman entering the legal profession at a time when that was unusual, but she hadn’t demonstrated a sharp judicial philosophy. Huckabee was presumably a fairly competent governor but he seems not to have any grasp of conservative principles beyond “What Would Jesus Do?”

My guess is that Huckabee’s fate will be the same as Miers’. But there’s a rather important difference. Supreme Court nominees are voted for by the United States Senate and elite opinion, especially that of leaders in the legal community, is incredibly influential. Presidential nominees, by contrast, as selected by the most enthusiastic partisans. In this case, Rush Limbaugh’s opposition will be much more important than that of the blogosphere.

Since no subject fascinates bloggers quite so much as bloggers, it’s no surprise that former White House communications director Dan Bartlett’s Texas Monthly comments on the subject have generated a blogstorm.

In the critical exchange, highlighted by TPM’s David Kurtz, Bartlett reacts angrily to a question about a “myth that there’s an underground tunnel between the Fox News studios and the White House,” claiming that Fox was of very little help. By contrast, however, bloggers like Hugh Hewitt or the gang at Power Line were considered must-reach targets because of their impact with the base.

I mean, talk about a direct IV into the vein of your support. It’s a very efficient way to communicate. They regurgitate exactly and put up on their blogs what you said to them. It is something that we’ve cultivated and have really tried to put quite a bit of focus on.

This draws appreciative chuckles from Kevin Drum, who chortles, “the right-wing blogosphere now has a new motto: Even more credulous and slavish than Fox News. It’s a proud moment for them.”

As if Democratic politicians don’t use left-wing bloggers, including some of the very most prominent ones, in precisely the same way?

For the most part, bloggers aren’t reporters; we’re advocates. Some of us do original reporting from time to time. A handful, like Josh Marshall and Michelle Malkin, do quite a bit. But we don’t pretend to be unbiased and we tend to bite on talking points that are favorable to our candidates and run with stories that are detrimental to political adversaries.

Still, Dan Riehl’s largely right when he says, “In my opinion, simply regurgitating what professionals give you isn’t blogging, not blogging I respect, anyway. And the best bloggers just don’t do it.”

To be sure, there are bloggers who are partisan hacks. And a handful of them have a large following. Most of us, though, are independent on an issue-by-issue basis even if we’re predisposed to give our guys the benefit of the doubt or to view information about the other side more harshly.

Ed Morrissey reminds us of several prominent examples: “I wonder if Bartlett has an explanation for the blogospheric response to Harriet Miers, Dubai ports, and most of all immigration that fits in with his ‘regurgitation’ model.”

For my part, I lambasted the administration on Harriet Miers (in opposition to Hugh Hewitt and others) and was one of a relative handful of right-of-center bloggers defending them on Dubai and immigration. In any case, though, the White House doesn’t have me on speed dial, as I haven’t been offered any exclusives to regurgitate.

I get plenty of emails from them, but they’re of the garden variety hack press release variety and have been filtered directly into my “PR Spam” file for months. Indeed, most of the contacts I’ve gotten from campaigns, congressional staffs, and advocacy groups are similarly worthless.

While Bartlett and other Republican activists might consider their blogger outreach effort successful, they’ve done a horrid job. Sure, getting talking points out to the most credulous bloggers and their readership is worthwhile. But merely stoking a dwindling base is hardly the best way to build a coalition.

They’d be far better served emulating the model the John McCain campaign has used. While his blogger outreach guy sends out a ridiculous number of emails to his list — sometimes a dozen or more on the day of a debate — and could do a better job of focusing his effort, they’ve gotten the big picture right. McCain has frequent blogger conference calls to which he invites a wide range of Republican-leaning bloggers, most of whom have aligned themselves with other candidates for the nomination. He simply asks that bloggers listen to what he has to say (usually a one or two minute statement) and then opens the floor for 40 minutes or more of unscripted questions, to which he gives candid responses. The result of this is that he gets a fair hearing and creates an actual relationship with bloggers and, in turn, their readers.

That’s a more risky model, I suppose, than calling up the usual suspects and having press releases appear as blog posts. It’s also potentially much more rewarding.

UPDATE: Screencap of the most recent 20 (of hundreds) of messages from the White House Communications Office added above.

Two pieces today give insights into the longshot presidential bid of Arkansas governor Mike Huckabee and the role of evangelical leaders in the Republican Party.

Michael Gerson notes Huckabee’s irritation that demonstrably less conservative opponents are garnering endorsements that should rightly be his.

When I asked former pastor and current presidential candidate Mike Huckabee his response to Pat Robertson’s endorsement of Rudy Giuliani, he paused for a moment. “Surprised” was his understated reply. But his frustration was quickly evident. “Our Web site went nuts with people saying they will never give money to Robertson again.”

“There is a disconnect,” he went on, “between past generational leaders in Christian conservatism and their own followers.” Note the word “past.”

Robertson’s endorsement of a pro-choice presidential candidate is a transparent attempt to remain on the Republican train, even as it chugs away from the priorities of the religious right. It also symbolizes a fragmented political movement, which has recently seen Paul Weyrich’s endorsement of Mitt Romney and Sen. Sam Brownback’s support for John McCain.

An unsigned piece in The American Spectator, though, notes that Huckabee is about to get a very big endorsement.

Dr. James Dobson, who has largely been made irrelevant to the 2008 Republican presidential race, has apparently found his man, and according to an adviser, is ready to change the landscape of the Republican nomination race. “He is the leader of the evangelical and social conservative movement in America, and he’s going to reassert that position and leave no doubt that he’s in charge,” says the adviser based in Colorado.

Sources close to Dobson say that within the next ten days he is coordinating an endorsement plan with the presidential campaign of former Arkansas Gov. Mike Huckabee. According to a Huckabee insider in Iowa, the event would be staged in that state at a rally, followed by a bus tour across the state, and an appearance by Huckabee on Dobson’s radio show, which is heard nationally.

Dobson’s endorsement, according to the Huckabee source, could mean millions in fundraising to the campaign, allowing it to compete at the same level with the top tier candidates Huckabee has been inching toward in the polls after a series of strong debate and campaign appearances. “It would help us get to the Thompson-McCain level if not higher,” says the source. “Dr. Dobson’s endorsement means that much.”

Dobson’s endorsement might also create a domino effect, as other evangelical and social conservatives have largely been withholding their endorsements, in part out of fear of angering Dobson and his many supporters who also fill crucial slots in other social conservative organizations run by such prominent leaders as Gary Bauer and Tony Perkins. Both men have been assisting multiple campaigns, with Bauer recently saying that he was providing advice to just about every campaign that sought his counsel.

One wonders, however, how important these endorsements are these days. There was a time, certainly, when a Jerry Falwell or a Pat Robertson could swing hundreds of thousands of votes. Is that true anymore? Hasn’t the fragmentation of media taken away much of their sway?

For sure, the path to the Republican nomination still goes through the Deep South and Middle America and, therefore, proper homage must be paid to the holy trinity of God, guts, and guns. Beyond that, though, the Moral Majority is long gone and the Christian Coalition is a shadow of what it once was. Are there that many people willing to brave the elements to caucus in Iowa because James Dobson or Gary Bauer tell them to?

A recent piece in The Economist suggests not.

The problem is that Mr Dobson is not all that good at politics. He displays all the characteristic weaknesses of evangelical politicos—overreaching hopelessly and then blaming failure on want of political courage. He was the prime force behind both the fight to keep Terri Schiavo’s feeding tube in place and the push for a gay-marriage ban. But a majority of evangelicals disapproved of the first and a large number of his fellow social conservatives warned, rightly, that the second was a waste of effort.

There have been other miscalculations. He wasted political capital supporting Harriet Miers’s doomed nomination to the Supreme Court. He strongly opposed the 2006 Evangelical Climate Initiative. He accused SpongeBob SquarePants of participating in a “pro-homosexual video”. He argued that “The Da Vinci Code” “has all the evidence of something cooked up in the fires of hell” (wouldn’t it have been better written if it had been?). He compared Bill Frist’s call for increased federal funding for stem-cell research to Nazi experiments.

The 70-year-old Mr Dobson (who has already suffered a heart attack and a stroke) is increasingly looking like a relic of an ancien régime rather than a harbinger of a new order. The average age of people on Focus’s mailing list is 52. Mr Dobson and his acolytes are rapidly being displaced by what Mr Gilgoff calls a New New Right—people who are concerned about international justice and climate change as well as abortion and gay marriage, and people who are willing to work with liberal pressure groups over issues such as Sudan and sex slavery.

And a goodly number of those folks don’t vote in Republican primaries.

The standoff over subpoenas for Bush advisors who are refusing to testify is moving to the next level.

The House Judiciary Committee approved a contempt of Congress citation Wednesday against White House Chief of Staff Josh Bolten and one-time Counsel Harriet Miers, setting up a constitutional confrontation over the firings of federal prosecutors.

The Justice Department said it would block the citation from prosecution because information Congress is demanding is protected by executive privilege. Democratic Speaker Nancy Pelosi said the House effort was important nonetheless. The contempt proceedings, she said, “are part of a broader effort by House Democrats to restore our nation’s fundamental system of checks and balances.”

The 22-17 party-line vote — which would sanction the pair for failure to comply with subpoenas on the firings — advanced the citation to the full House. A vote there is possible this fall.

Ultimately, this is a showdown that will be decided by the courts. My guess is the White House will win, since it’s hard to imagine that people in his kitchen cabinet wouldn’t be covered under executive privilege in something other than a criminal investigation.

The Bush Administration announced yesterday it will ignore demands from Congress to issue contempt indictments for officials the president has ordered not to testify. Dan Eggen and Amy Goldstein report on the front page of today’s WaPo:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

On its face, that hardly seems bold at all. It’s rather axiomatic that the head of the executive branch would decline to have his subordinates file charges against people for doing what he has ordered them to do. It would be an absurd outcome, indeed, were an official to follow the president’s orders and then be arrested by that president’s men for doing so.

There’s a wee problem, however:

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

So, it would appear Congress has taken this matter out of the president’s discretion.

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

“A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” said a senior official, who said his remarks reflect a consensus within the administration. “And a U.S. attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.”

Essentially, the administration is claiming that the law is unconstitutional and daring Congress to get a court order deciding the question. Apparently, it’s never been decided because, in the handful of cases where the matter has come up, a deal has been struck between the administration and Congress rendering the controversy moot.

Steve Benen is amazed by “how truly radical” this is. “Let’s cut to the chase: the president and his team are arguing that once the White House claims executive privilege, there is no recourse. The president is accountable to literally no one — not the Congress, whose subpoenas can be ignored, or the federal judiciary, which can’t hear a case that cannot be filed.”

But the president is merely refusing to issue criminal indictments. There are other ways to get a case to court. Orin Kerr guesses, “after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process.”

Jacob Sullum, under the amusing post title “Bush to Congress: Try and Make Me,” wonders, “Under this theory, could the president also block the prosecution of an official who, say, tortured a prisoner or conducted illegal surveillance, if the president determined that such measures were necessary, proper, and constitutional tactics in the war on terrorism?” Well, yes. He could do that under any theory of executive power I’ve ever heard of.

Similarly, Steven Taylor entitles his post, “Bush to Congress: The DoJ Only Has to Prosecute the Laws that I Like.” But, ultimately, isn’t that always the case?

The executive branch, whether at the federal, state, or local level, always has discretion over how to execute the law. Local beat cops decide whom to arrest or issue a citation and whom to let off with a warning or ignore altogether. Mayors decide to suddenly enforce antiquated laws because they’re getting complaints from the voters about something or another. Heck, Rudy Giuliani made his reputation as a law and order guy by cracking down on squeegie men and others committing minor offenses. At the federal level, Democratic and Republican presidents use their discretion to order their Justice Department to increase or decrease emphases on enforcement of whole classes of criminal activity.

Still, as Radley Balko observes, the implications in the specific controversy are stark, “This administration is essentially saying that it and it alone determines when the people who work for it have broken the law, and no other branch of government has any say in the matter.” It’s not quite saying that, though, merely that it is a co-equal branch with Congress and that it won’t have its claims of executive privilege trumped by congressional fiat. Presumably, as Orin Kerr noted, Congress could force the issue through civil litigation.

There are, of course, other recourses. As Balko notes, there’s always impeachment. Less drastically, as Mark Kleiman points out, the Congress can use the power of the purse to make things difficult for the administration. Further, as Taylor suggests, this may increase pressure to distance the U.S. Attorneys from the political process, making them independent of the president. As I argued months ago, that would be a good thing for a variety of reasons.

Both sides are playing political hardball here. The administration is, I think, wrong on the merits here: It seems to me Congress has every right to conduct oversight into these issues and the executive privilege claims strike me as weak.

Ultimately, the Supreme Court should step in and decide this. Congress should file a civil injunction to compel the U.S. attorney for the District of Columbia to empanel a grand jury in these matters. If the president intervenes, there will be a case in controversy, which SCOTUS should fast track. The other branches will then abide by that ruling. If the Court rules against the president and he refuses to obey, Congress will almost surely impeach him.

UPDATE: Marty Lederman offers no opinions on the merits of the administration’s claims has some interesting background on what he terms a “contestable conclusion.”

UPDATE: Glen Greenwald has an extensive and generally persuasive essay on the “rule of law” implications at stake here. Ultimately, though, it comes down to a hypothetical:

The great unanswered question of the Bush administration has been, and continues to be, whether, upon losing a judicial battle, they would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority.

It seems reasonable that, if the executive and legislative branch have limits to their authority — and they do — that the “weakest branch” should also have such limits. Beyond impeachment, though, there’s not much remedy given in the Constitution for perceived overreach since, indeed, the very power of judicial review is extra-Constitutional. Andrew Jackson once famously challenged the Court to enforce its orders and FDR threatened to expand the size of the Court and pack it with sympathetic Justices, so the question is hardly new.

Regardless, though, for the president to refuse to carry out an order from the Supreme Court, especially one in a case brought by Congress against him, would create a Constitutional crisis. The remedy, though, would be simple: Impeachment. That, ultimately, is the constraint on an overreaching executive. Short of that, the branches are merely exercising their invitation to struggle, a practice which goes back to the days of George Washington’s administration.

Dahlia Lithwick laments the speed at which Sandra Day O’Connor’s legacy on the Supreme Court has been undone.

During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O’Connor—a few short years ago the “most powerful woman in America,” a “majority of one,” the “most powerful person on the court,” and the most “powerful Supreme Court Justice in recent history“—had somehow become the most disregarded. With the court’s newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it’s clear that one real casualty of the new Roberts Court is O’Connor’s lifetime of work on an extraordinary range of constitutional issues.

What can we conclude about the court’s swing voters, about O’Connor herself, or about the Roberts Court, from the speed with which her legal legacy is being dismantled?

So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O’Connor’s theoretical framework for abortion, campaign finance, and affirmative action. That’s to name just a few. My friend Marty Lederman predicted as much when O’Connor first retired two years ago; still, the speed of it all is proving to be unsettling, if not downright unseemly.

That’s the price, as Lithwick more-or-less acknowledges, of being a lightweight without a serious judicial philosophy. O’Connor was precisely what many of us feared Harriet Miers would have become had her nomination to the court been confirmed: A bright, decent woman who simply voted her conscience on each case rather than a serious constitutional scholar who could look past the immediate controversy. Miers would likely have reached decisions that conservatives were happy with, to be sure, but she would have simply represented a vote, not an addition to the intellectual heft of the Court.

Ronald Reagan had promised during the 1980 campaign to appoint a woman to the Supreme Court. He did this, mostly, to mollify critics of his opposition to the Equal Rights Amendment. The problem, however, was that there were very few women, indeed, with a resume fit for the job at the time and fewer still who were judicial conservatives. O’Connor had been a minor league politician and had served a few years as a state court judge in Arizona. While impressive enough for anything but a Supreme Court appointment, that hardly prepared her for a battle of wits with the likes of Lewis Powell or Harry Blackmun, much less William Rehnquist or Antonin Scalia.