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CodeWarriorz Thoughts: Sunday, July 24, 2005 CodeWarriorZ BlueZ

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Sunday, July 24, 2005

 

Rove scandal chipping at Bush agenda

an Bremmer
July 25, 2005

THE main reason the growing scandal around Karl Rove matters - aside from the fact that a senior White House official may have committed a felony - is that it damages George W. Bush's declining political capital.

From social security reform to Iranian nuclear proliferation, from Supreme Court nominations to US-China confrontation, a president needs domestic political capital to achieve his policy goals. Bush's chip stack is clearly shrinking.

Most second-term presidents have 18months to govern before lame-duck status sets in. Bush is already wrestling with Congress on foreign and domestic priorities. The battle over Rove's possible involvement in a felony dangerously distracts the White House and is likely to undermine support for the President's agenda.

Rove, the man credited with Bush's winning campaign strategies in 2000 and last year, has been dogged by charges he leaked the name of an undercover CIA agent to at least three journalists. One, Robert Novak, published the agent's name in his syndicated column. A second, The New York Times correspondent Judith Miller, is in jail for refusing to reveal who gave her the agent's name. The third, Time magazine's Matthew Cooper, avoided jail when Rove, his source, released him from a confidentiality deal, allowing him to testify before a grand jury. Time also handed over Cooper's notes and emails relating to the leak.

Novak says he wrote the column that outed the agent, Valerie Plame, to discredit ambassador Joseph Wilson's criticism of the Bush administration.






Wilson, Plame's husband, says he was sent to Africa by the White House to investigate claims then Iraqi president Saddam Hussein had tried to buy uranium from Niger. Wilson says he found no evidence such an attempt was ever made. But Bush made the claim in 2003 anyway as part of his effort to secure domestic support for the invasion of Iraq.

Wilson then wrote an opinion piece challenging the White House's truthfulness. Novak says he outed Plame to show the White House had not authorised Wilson's trip to Niger. But Wilson says the White House leaked his wife's name, and Novak printed it, simply to get revenge on someone who had criticised Bush.

With the opening of Cooper's notes, the media has moved into 24-hour Rove-watch. But there is reason to doubt the Bush confidant was the source of the leak.

The disclosure of the agent's name was too sloppy and unprofessional for someone of Rove's calibre. A recklessly large number of journalists were first approached about writing the story.

And although Novak is clearly an ideological conservative, he has criticised the administration often enough that he can hardly be considered its mouthpiece.

It was no sure thing Novak would play his assigned role. The lack of a coherent media strategy, the unnecessary urgency about placement of the story and the eagerness to use Novak all point to a leaker in the White House less media-savvy than Rove.

But if Rove didn't leak the agent's name, who did? It's sheer speculation, but smart money in Washington appears to be on Vice-President Dick Cheney's chief of staff, "Scooter" Libby, giving Plame's name to The New York Times reporter Miller - possibly with the direct involvement, or at least knowledge, of Cheney himself.

That would explain why the administration gave Cooper the go-ahead to reveal his conversations with Rove: the White House was confident Rove had broken no laws. If Miller were to reveal her sources, on the other hand, that would be another political problem entirely. Miller is accordingly likely to be the journalist who received the initial leak.

The person who gave her Plame's name may well be indictable. In other words, if Miller had revealed her source, a senior Bush official could have landed in jail - setting off a media circus of Monica Lewinsky proportions. That scandal would have potentially paralysed the administration at a time it is wrestling with high-stakes policy problems.

It's likely the scandal around Rove will grow. Because Bush values personal loyalty, and because his adviser has probably not broken the law, Rove is expected to remain in the administration. Bush knows the media would read Rove's departure as an admission of guilt and report the story as a body blow to the administration's credibility.

 

Clues on how Roberts might act on high court

His record while at a federal appeals court, though sparse, shows a resistance to limits on presidential power.
By Warren Richey | Staff writer of The Christian Science Monitor
In his two years as a member of the federal appeals court in Washington, D.C., Judge John Roberts has helped decide more than 120 cases.

Not one of them examined abortion rights, affirmative action, or the separation of church and state. Rather than hot-button social issues, many of his cases involved litigation over complex regulatory matters and suits against some arm of the government. Most never made it into the headlines.


In the Monitor
Friday, 07/22/05
The sidewalks where terror breeds
An echo of attacks on London
Ideology's high profile in hearings
Clues on how Roberts might act on high court
China makes major shift on currency
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Still, with his nomination to replace retiring Justice Sandra Day O'Connor on the US Supreme Court, Judge Roberts's appeals-court work is suddenly under heavy scrutiny for any clues about how he might behave should he win a lifetime appointment to the nation's highest court.

The record that is emerging, though surprisingly sparse, does offer some insight into what makes Roberts tick as a judge, legal analysts say.

Many conservatives are not concerned with the lack of a long judicial record. "I take comfort in the fact that he is very bright and that he seems to understand the role of a judge, and I think lots of good things ought to flow from that," says M. Edward Whelan, president of the Ethics and Public Policy Center in Washington.

Liberals are worried that the lack of an extensive judicial record means a lack of ammunition for the campaign being mounted to defeat the Roberts nomination. Efforts are under way to reach even further back into his service in the Reagan and the first Bush administrations for documents that might help flesh out his thoughts on contentious issues.

Among cases drawing considerable interest are those in which Roberts:

• Upheld the president's authority to conduct terrorism tribunals at the Guantanamo Bay Naval Base in Cuba.

• Raised questions in a dissent about whether the commerce clause authorizes enforcement of the Endangered Species Act in certain cases.

• Upheld the arrest of a 12-year-old girl apprehended for eating a single French fry in a subway station.

"The one thing that seems pretty clear is that he is very strong on resisting any limits on presidential power," says William Marshall, a constitutional law professor at the University of North Carolina School of Law at Chapel Hill.

Last week, a three-judge panel, including Roberts, delivered the legal equivalent of a home run to the Bush administration in upholding its use of military commissions to try individuals designated as enemy combatants who are being held at Guantánamo.

A federal judge in Washington had earlier ruled that the president did not have the power to conduct such commissions and that the Bush administration was violating terms of the Geneva Accords. The appeals court panel - including Roberts - disagreed.

The scope of presidential authority to wage the war on terror is expected to become a major issue before the Supreme Court in the months and years ahead.

One Roberts case receiving particularly close attention involves a 2003 challenge to the federal Endangered Species Act. At issue was whether the act could be invoked to protect a certain species of toad that exists entirely in California and was being threatened by a development project. The appeals court ruled that under Congress's commerce-clause powers, the Endangered Species Act extends protection to the toad.

Parties in the case asked the full appeals court to reconsider. All but two judges declined to take up the case.

Roberts was one of the two.

In his dissent, he said the full court should agree to hear the case to more faithfully apply two Supreme Court precedents establishing limits on Congress's commerce-clause powers. He noted that the Fifth US Circuit Court of Appeals had recently adopted a similar, more restrictive, reading of commerce-clause authority and the Endangered Species Act.

"The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'commerce ... among the several states,' " Roberts wrote.

Legal analysts say Roberts's dissent is likely to spark sharp questioning during his confirmation hearing about his thoughts on judicial limits on federal and congressional power. He will also draw inquiries about his commitment to environmental protection by the national government, they say.

Alliance for Justice, a liberal advocacy group, says in a report that Roberts's dissent in the toad case raises a red flag. "The effect of Judge Roberts' views on Congress' commerce clause authority might threaten to undermine a wide swath of federal protections, including many environmental, civil rights, workplace and criminal laws," the report says.

The Roberts dissent was written in 2003. Last month, the Supreme Court limited its earlier commerce-clause rulings in a case that authorized federal policing of the intrastate possession and use of marijuana for medical purposes. Roberts, of course, did not have the benefit of that decision at the time he wrote his earlier dissent.

In the much-discussed French fry case, a 12-year-old girl was arrested for eating a French fry in a Washington, D.C., subway station. Rather than questioning the wisdom of the city's harsh policy, Roberts said the role of judges was to apply the law. He upheld the arrest and said it was up to elected city officials to decide the wisdom of the policy that prompted the arrest.

Related Stories
07/22/05
Ideology's high profile in hearings
07/21/05
Bush's pick meets measured reaction
07/21/05
Editorial: What to Ask Nominee Roberts
07/21/05
A conservative with few hard edges

Conservatives are praising the ruling as an example of the proper limited role of judges. Liberals say the case raises questions about fair treatment of juveniles by the government - issues that they say were glossed over by Roberts.

How Roberts might rule on abortion is at the top of the list of concerns being expressed by liberal advocacy groups. But he has had no known professional involvement with the issue since his confirmation hearings to the appeals court in 2003.

At that time, he was repeatedly asked by senators whether he believed the abortion precedent Roe v. Wade should be overruled. He dodged the question.

He said that Roe was binding legal precedent and that as an appeals-court judge he would be bound to follow it. He added, "Nothing in my personal views would prevent me from doing so."

Now, as a prospective Supreme Court justice, Roberts could have the power to overturn Roe - as well as to rule in other abortion-related cases. Still, there is nothing in his appeals-court experience that suggests how he might approach the issue.

 

RESUME WRITTEN ON A FRENCH FRY

You can follow the next two months of political thrashing and hullabaloo over the nomination of John Roberts to the Supreme Court, or you can get the whole thing over with by looking at how he handled a single french fry.

Thanks to a ninth-grader at Deal Junior High School who in 2000 committed the horrifying crime of eating a fry in a D.C. Metro station, we have as strong a look inside Roberts's mind as we're likely to get from weeks of investigation and hearings.

Ansche Hedgepeth was only 12 when a Metro police officer caught her, fry in hand, as she waited for her Red Line train. Under the system's zero-tolerance, no-eating policy, the cop arrested Ansche, cuffed her and took her in. An adult in that situation would have gotten a citation, but District law said minors were to be taken into custody until retrieved by a parent.

The french fry case hit John Whitehead's buttons. A Charlottesville, Va., lawyer whose Rutherford Institute fights for civil liberties from a conservative perspective, Whitehead took on Ansche's case, arguing that the government had gone too far.

The matter wound up in the U.S. Court of Appeals, and Roberts's decision last fall shows him to be a witty writer with the confidence to show some heart. He seems pleased that after "the sort of publicity reserved for adults who make young girls cry," Metro changed its policy and no longer arrests young snackers.
---ADVERTISEMENT---

Roberts recognizes that Ansche wants the charges nullified because no one wants to have to say yes to that standard application question, "Ever been arrested?"

But Roberts quickly divorces himself from the human side of the case. He has no sympathy for the notion that Ansche was discriminated against because of her age. Roberts says government has every right to treat children differently, setting age requirements for voting, marriage, driving and drinking. Anyway, he notes, the fact that Metro changed its policy so quickly shows "that the interests of children are not lightly ignored by the political process." But Roberts rejects the idea that the court should weigh in on whether the police trampled on Ansche's freedom.

President Bush has always said he likes judges who take a limited view of their role, who stick to the facts without imposing their political interpretations. But that's all political rhetoric: Every case requires every judge to interpret the law. The question is what philosophy guides them.

At every turn in the french fry case, Roberts defers to authority. He says Metro's policy of arresting kids "promotes parental awareness and involvement" by requiring parents to pick up their misbehaving child.

Roberts may personally doubt Metro's arrest policy -"it is far from clear that (the arrest is) worth the youthful trauma and tears"-but he concludes "it is not our place to second-guess such legislative judgments."

There's the Roberts philosophy. He repeats it throughout the opinion: It's not the court's role to tell police whether an arrest is reasonable if the officer has probable cause. It's not the court's place to consider Ansche's constitutional rights if Metro has already changed its rules.

As Whitehead told me Wednesday: "He's exactly what I would expect George Bush to choose. He's very deferential to authority, whether government or business. He's not a civil libertarian. He is a thinking judge and he sees Ansche's pain. But he's like the father that comes to whip you and says, 'This hurts me more than it hurts you.' He just doesn't see that the letter of the law only works when it applies to human beings."

The french fry case tells the story of someone much like the president - a man who embraces the rhetoric of limited government but defers to and protects government authority. Roberts will disappoint both ends of the spectrum. He's neither an Antonin Scalia nor a William Douglas, justices whose personal passions bled through their judicial opinions, making them polarizing but creative and influential.

The reporting on Roberts describes him as a conservative Republican, but a single french fry reveals more about who he is on the bench: a judge who sees it as his task to separate the mess and emotions of daily life from the letter of the law.

------ End of article

By MARC FISHER

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