The Has-been

Keeping Up Appearances

Justice isn’t all that’s blind.

Friday, Aug. 12, 2005

Say No More: The trouble with most Presidential candidates is that they’ll say anything just to get elected. The trouble with Supreme Court nominees is that they’ll say nothing just to get confirmed.

The Post reports that in 1981, John Roberts sent a memo to Sandra Day O’Connor advising her to plead the 5th if asked about her views on legal questions. Roberts warned that answering questions would raise the “appearance of impropriety” and prejudice her views in future cases before the Court.

Roberts has an excuse: It was his first job. But if it’s improper for future Court justices to discuss specific legal questions and precedents, why do we need law schools?

In a few weeks, thousands of first-years will raise their hands for the first time in Civil Procedure class and begin compromising their futures as blank-slate Supreme Court justices. Pity the 1-L who shows up unprepared for class and tries to convince the professor that answering any questions would raise an “appearance of impropriety.”

With profound understatement, the Post says: “The memo appears to raise the possibility that Roberts will himself be reluctant to be pinned down on specific cases during confirmation hearings.” The lawyer’s lawyer declines to comment on advice of counsel.

Channel Surfing: On Tuesday, the New York Times explained why Westchester County district attorney Jeanine Pirro agreed to run for the Senate against Hillary Clinton: “Even in defeat, Ms. Pirro has told friends, her resulting fame could pave the way for another statewide office, or, perhaps, give her a greater role on television, where she has been a legal analyst for Fox News.”

Although by no means impartial, The Has-Been considers it a breakthrough when a Senate race is now just a stepping stone to Fox News. In the past, prime seats at Fox and elsewhere were reserved for true has-beens looking for something to do after leaving Congress. Newt Gingrich, John Kasich, Martin Frost, and Susan Molinari are among the former members who have gone on to be part of the Fox family.

Skipping Congress to go straight into punditry has its advantages. Governing can be boring work. Fox pays better and earns higher ratings than C-SPAN, especially in the 18-44 demographic prized by advertisers. Besides, what can freshmen possibly get done, anyway?

Of course, Rick Lazio, the last guy to run against Hillary Clinton, went on to a brief stint as a guest host on Fox. But he did it the hard way, as a washed-up congressman.

Jeanine Pirro will never get as much airtime on Fox as Hillary Clinton. But if Pirro’s strategy works, she’ll pioneer a lucrative new career path for up-and-coming has-beens: like low-budget Disney sequels, we can bypass theaters and go straight to DVD and video.

Kiss and Make Up: Pirro will face stiff competition from conservative idol Rep. Katherine Harris, who announced her own Senate candidacy in Florida this week. Harris says she’s deeply hurt by how press coverage of the 2000 recount misled the nation into thinking she was shallow, partisan, and obsessed with makeup. To dispel that impression, she staged an announcement that was shallow, partisan, and obsessed with makeup.

In her announcement speech, Harris called herself “conservative but progressive, pro-small business, pro-economy, and anti-tax.” She attacked Sen. Bill Nelson as “one of the most liberal” Democrats in the Senate. Harris told reporters, “I’d like to say I trail by an eyelash” and recalled her childhood as a time “when blue eyeshadow was quite the fashion.”

No one could fault Harris for wanting to change her image from 2000. But those crocodile tears are smearing her mascara. Harris knows that in this race, as in her election to the House, her 2000 image is all she has going for her. Her website says as much, boasting that Harris “already benefits from tremendous residual name I.D.”

Residue Is Destiny: Harris has herself to blame for partisan scars from 2000. If she wants a second look, she’d do better to highlight an area where she has a right to be angry: the concerted efforts by an ungrateful White House to keep her out of the race. GOP strategists continue to hold out hope for a better candidate, just as they maneuvered to pave the way for Senator Mel Martinez in 2004.

The only comment from Gov. Jeb Bush, who put Harris in harm’s way in 2000 and was still recruiting someone to run against her a week ago, was: “I hope Congresswoman Harris runs a strong campaign.” With friends like that, who needs makeovers? … 10:09 A.M. (link)

Wednesday, Aug. 10, 2005

Room 101: For years, the greatest philosophical difference between the two parties has been over the role of government. Democrats tend to trust government; Republicans don’t—except on the question of security, where many Republicans tend to embrace government and some Democrats don’t. Liberals live in fear of Big Brother; conservatives live in fear of Big Government.

Fear not: Washington has found a way to deliver both.

The 9/11 commission just announced that it is looking into yesterday’s New York Times report that a year before Sept. 11, a classified military intelligence unit used “personal data-mining” to identify four of the hijackers—including Mohammed Atta—as likely members of al-Qaida. As Mickey Kaus points out, if the story is true, it should provide a boost both for the data-mining business and for Orwellian fears about data-mining.

But high-tech sleuthing is the least-surprising part of the Times story. Most Americans already know that Big Brother is alive and well and running a credit-card-verification business somewhere in South Dakota.

The more interesting twist is what allegedly happened to the information after military intelligence uncovered it. Agents prepared a chart on the “Brooklyn cell” and recommended sharing it with the FBI, but higher-ups rejected their advice, perhaps out of reluctance to share intelligence that would have been illegal to gather if the targets of the investigation had been citizens. Even Big Government is afraid of Big Brother.

One source for the Times story, Rep. Curt Weldon, R-PA., says that he learned of the operation after Sept. 11 and passed the information on to Stephen Hadley, who is now Bush’s national security adviser. The article goes on to quote a spokesman for the military denying the existence of the operation and a spokesman for the 9/11 commission confirming that members were briefed about the operation but not told that it had turned anything up.

Today’s Papers and others have cast doubt on the Times story. Too bad, because as a study in the inner workings of government, it’s too good not to be true.

Threat Elevated: The Department of Homeland Security should use the Times account to develop a color-coding warning system on which arm of the bureaucracy poses the greatest threat to American security.

The “Pentagon cell” is extensive, unpredictable, and highly encrypted. According to the Times, the “Able Danger” team was an offshoot of the “Land Information Warfare Assessment Center,” which is now known as the “Information Dominance Center.” Able Danger agents were rebuffed by the “Special Operations Command,” whose spokesman says no one at the command now has “any knowledge” of the program.

The “intelligence cell” is also widespread and difficult to penetrate. As the Times recounts, the CIA identified only two of the 19 hijackers as potential threats before the summer of 2000, and it waited until the spring of 2001 to tell the FBI, which did little with the information. If the Times account is accurate, the Pentagon’s failure to act on Able Danger operatives’ findings spared FBI operatives the embarrassment of failing to act on those findings.

The “White House cell” is elusive and prefers to operate in secret. Even high-ranking Republican congressmen cannot explain its intricacies.

Of course, the entire flap could be an exercise in bureaucratic infighting. In today’s story, a Pentagon spokesman says “it would be irresponsible for us to provide details in a way in which those who wish to do us harm would find beneficial,” but he fails to say whether he’s referring to the FBI, the CIA, the White House, or Congress.

Kean and Able: On the other hand, the story could be a perfect snapshot of the progress we’ve made since Sept. 11. Has-Been-of-All-Has-Beens Donald Rumsfeld said, “I’ve never heard of it until this morning.” Has-Been-Turned-Matinee-Idol Tom Kean said, “Somebody should be looking into it.” Apparently, the revelations were even news to the director of national intelligence.

Sept. 11 isn’t just the greatest intelligence failure in history. It’s the intelligence failure that keeps on failing.

Ironically, the Times story suggests another danger that Orwell missed: Big Brother and Big Government have a tendency to cancel each other out. Even when the government knows everything, there’s no telling whether anyone in government knows it. … 1:24 P.M. (link

Hush Money: Alert readers Kevin and Teri Berg point out that Rafael Palmeiro gave $4,000 to the Bush campaign in 2003-04, the most the law allows. Bush doesn’t call his top fundraisers “Rangers” for nothing.

Palmeiro’s finger-wagging denial under oath is now well on its way to being ESPN’s Ultimate Highlight. That’s good news for the previous major-league leader in denials, Barry Bonds, who holds single-season records for home runs, walks, and most times saying “Dude, whatever” in grand jury testimony.

Bonds has been sidelined all year with a knee injury. Just as the Palmeiro story broke, he announced that he probably won’t return this season. On Thursday, his San Francisco Giants began promoting the aptly named “Barry Bonds Clubhouse Collection.” The website offers “hand-signed” shoes for $2,000 and gloves for $5,000.

Coming soon: hand-signed subpoenas from the Rafael Palmeiro House Committee Collection. 9:37 A.M.

Monday, Aug. 8, 2005

Winners and Losers: Next Monday marks the 60th anniversary of America’s victory in World War II. After the attack on Pearl Harbor in December 1941, America and its allies needed just three years and nine months to win the bloodiest war and defeat the gravest threat to freedom in human history.

What of our time? Nearly four years have passed since the Sept. 11 attacks—and we’ve not only yet to win the war on terror; we can’t even decide what to call it.

What happened? In the immediate aftermath of Sept. 11, every American felt the same surge of patriotic anger their grandparents had felt 60 years earlier on Dec. 7. We were ready for four years of Liberty Bonds and Victory Gardens. Instead, over the last four years, our biggest collective sacrifice has been watching reality shows on television.

Sixty years ago, FDR summoned all Americans to do their part for the war effort. This year, the Bush White House summoned a Duke expert on wartime public opinion. The administration concluded that the way to maintain public support for a war is to keep telling the people we’re winning. So much for that theory.

FDR and Harry Truman had a better way to maintain popular support for a war: actually winning it. That’s a novel concept for Americans under the age of 50, who’ve been conditioned to believe that wars are won in an instant (like Grenada and the Gulf War), or drag on until the American people lose interest (like Vietnam and Iraq).

Thirty Days: Democrats sometimes criticize President Bush for being obsessed with the war on terror. His real problem is just the opposite: He’s not obsessed enough. Bush is making history in August 2005 exactly the same way he did in August 2001: by taking a month off for vacation.

Unfortunately, the enemy is not on holiday. You won’t see Osama bin Laden clearing brush outside his cave on the Pakistan border.

FDR worked himself to death during World War II. Woodrow Wilson did the same in World War I. George Bush is in no such danger.

If winning the war against radical totalitarianism were Bush’s single-minded obsession, he’d listen to John McCain: Stop Washington from spending like drunken sailors, ask every American to give something back, and hire a defense secretary who stands up for his troops instead of blaming them.

It’s no surprise that a national tragedy like September 11 would make the President feel a divine calling. It’s harder to understand why, when the moment cries out for another FDR, Bush thought God was calling him to be Calvin Coolidge. …  9:19 A.M. (link)

Friday, Aug. 5, 2005

Extra Special: Even Newt Gingrich agrees that Paul Hackett’s strong showing in Ohio’s 2nd District special election is a shot across the bow to the Republican Congressional leadership and the White House. Republicans defied the odds by gaining seats in the 2002 midterm election, but in 2006, they may discover that in the absence of national progress, you can’t keep making political progress forever.

Ironically, the best news for Democrats in the race is the excuse Republicans give for its photo finish: that it was just about Ohio. Republicans were quick to blame low GOP turnout on the unpopularity of the state’s Republican governor, Bob Taft. So much the better: The Ohio’s governor race is the most important contest in America in 2006.

Over the past decade, one of Democrats’ biggest trouble spots has been the inability to win statewide in Ohio. Republican senators have replaced the old Democratic lions, John Glenn and Howard Metzenbaum. The governorship has been in Republican hands for the last 15 years.

As 2004 demonstrated, Ohio is the pivotal swing state in presidential elections. Clinton carried it narrowly in 1992 and 1996; Bush did the same in 2000 and 2004. Ohio has always been important—birthplace to more presidents than any state except Virginia. But for Democrats, who have lost every southern state twice in a row, Ohio’s 20 electoral votes are now especially crucial.

Governors Matter Most: Senators and House members of the same party can help presidents succeed in office; governors are the ones who help them get there. Congressmen are unknown beyond their districts; senators run too seldom to keep a political organization in fighting trim.

By contrast, governors have the power to appoint a network of political allies to jobs across the state and the proximity to maintain it. Clinton and Bush both depended heavily on a strong network of governors to win the primaries and the general election.

Thirty-eight governorships are up for grabs in 2005 and 2006, including other open seats in the critical swing states of Florida and Colorado. In Ohio, Democrats have two strong, centrist candidates to choose from next year: Rep. Ted Strickland, from a Republican-leaning district in eastern Ohio, and Mayor Michael Coleman of Columbus, the state’s largest city. Winning the Ohio governorship would vault either of them straight to the next Democratic nominee’s vice-presidential shortlist.

This week’s news offered another reminder of governors’ power to make or break presidential elections, as Senate candidate Katherine Harris whined that in 2000, the media doctored her makeup. Winning the Ohio governorship next year would give Democrats the chance to forget Jeb Bush and Katherine Harris and show the country what a Democrat is made of. … 11:12 A.M. (link)

Closer Than You Think: The House Committee on Steroids doesn’t believe Rafael Palmeiro after all. According to the Post, Rep. Tom Davis’ committee will take 2 months to 3 months to determine whether to ask the Justice Dept. to prosecute Palmeiro for perjury.

Most unfortunate soundbite by a congressman asking for drug tests: “We’re nowhere near the ‘p-word.’ “7:27 A.M.

The Plot Thickens, Part I: Under perhaps the best Washington Post headline of the summer—”Bush Backs Rove, Palmeiro, ‘Intelligent Design’  ”—Dan Froomkin reports that the president goes along with the ex-Ranger’s story: “Rafael Palmeiro is a friend. He testified in public and I believe him.”

But which Palmeiro does Bush believe? The one who said, “I have never used steroids. Period,” in March—or the one who said Monday, “I have never intentionally used steroids. Never. Ever. Period.”?

More Bush: “He’s the kind of person that’s going to stand up in front of the klieg lights and say he didn’t use steroids, and I believe him. Still do.” Even though Bush hasn’t been a baseball owner in more than a decade, he hasn’t forgotten how to look the other way. Somehow he still finds time to practice.

Fool Us Once: Meanwhile, the ever-vigilant Congress wants Palmeiro to cheer up. While he may have blown his chance to join the Hall of Fame in Cooperstown, he earned the next best thing: a chance to testify again before the House Government Reform Committee.

Palmeiro spoke yesterday with the committee chairman, Rep. Tom Davis (R-VA). Committee staffers told the New York Times that Palmeiro wouldn’t face perjury charges because the steroid test he failed was “some weeks” after he denied he’d ever used them. In other words, they “believe him.”

The committee plans to ask Major League Baseball for “all of the specifics on the Palmeiro testing.” That can mean only one thing: random drug testing for future congressional witnesses. Raising your right hand just isn’t good enough anymore.

The Plot Thickens, Part 2: Can Livin’ La Vida Lo-Carb be right that Bush is “leading by example,” when the rest of America isn’t following? The Post says that in January 2004, more than 9 percent of Americans were on low-carb diets. Now that number had shrunk to 2.2 percent. The same weekend Bush took his physical, Atkins Nutritionals Inc., the premier producer of low-carb foods, declared bankruptcy. The reason: The dogs don’t like it.

So, if Bush has lost weight by giving up donuts, he’s the only one. Moreover, he tested positive for carbohydrates. The Has-Been’s new theory: Bush didn’t use steroids intentionally.

Hard Workout: Not everyone in the Washington area is taking steroids. With a flurry of legislation last week, the all-you-can-eat Congress showed how to put on weight the old-fashioned way: all fat, no muscle. In the old days, Republicans like Ronald Reagan used to veto bloated highway bills. Bush and Congress agreed on one that costs $286 billion, including a $2.3 million earmark for landscaping on the Ronald Reagan Freeway. As a candidate, Bush used to say, “It’s your money.” Now he just spends it.

Why does a man who cares so much about getting thinner let the government get fatter? Bush is addicted to big-government, interest-group conservatism, which offers one of the most irresistible diet pitches of all time: Eat all you want—you’ll grow your way out of it.

The president believes in individual responsibility. It’s not government’s job to keep him fit; that’s his job. It’s not his job to trim government; that’s government’s job. … 9:01 A.M. (link)

Moore Is Less: On his blog “Livin’ La Vida Lo-Carb,” which sets out “to combat the daily lies” by opponents of the Atkins Diet, half-the-man-he-used-to-be Jimmy Moore offers his own theory of how the president lost eight pounds. “I thought my heart rate was low until I discovered that President Bush’s resting heart rate is 47 beats per minute,” says Moore, who puts his own “bpm” at 45. “You can’t blame Bush for our nation’s poor health!” Moore goes on to gush that Bush “limits his caffeine intake to coffee and diet sodas.” Apparently, the president’s renowned willpower enables him to forgo Dexatrim and No-Doz. … 2:38 A.M.Monday, Aug. 1, 2005

Jake and the Fat Man: President Bush got back the two sets of numbers he cares most about this weekend. On Friday, his approval ratings hit an all-time low. On Saturday, Bush’s doctors said his weight is at its lowest point since 2001. The president probably looks at these numbers and decides that on balance, it was a pretty good week. For the rest of us, it’s like an old good-news, bad-news joke. The good news is, your doctors say you’re “fit for duty“; the bad news is, you’re worse at it than ever.Reaction to the president’s good health split along predictable partisan lines. One skeptic cast doubt on Bush’s impressive 15.79 percent body fat: “They don’t include head fat.” Happily, Wonkette and Rush Limbaugh have yet to comment. But give the president credit: He’s no William Howard Taft.The Has-Been applauds the president’s good health and urges all Americans to follow his example. But given how much time Bush devotes to fitness, it’s time to ask: Has Bush’s war on fat been worth it? A Has-Been investigation reached some startling conclusions: Fit as a Fillmore: If Bush thinks muscle tone is his ticket to Rushmore, he’s sadly mistaken. According to historical data compiled by the Body Fat Lab, there is little correlation between fitness and greatness. Bush’s body fat has ranged from 14.5 percent in 2003 to 18.25 percent last December to 15.79 percent today. According to BFL, nine of the previous 42 presidents had body fat in the 11-21 percent range. That list includes three great presidents (Jackson, Lincoln, FDR), one who died too early to judge (JFK), and five whose time in office was less than stellar (Madison, Tyler, Grant, Nixon, and Carter).The man with the least body fat in presidential history—under 11 percent—was James Madison, a great American but unexceptional president. By contrast, some of the greatest presidents (Washington, Jefferson, Teddy Roosevelt) fall in the softer 22-27 percent range.Bush might be especially disappointed with another measure—body-mass index. Bush’s BMI is 26—almost indistinguishable from Bill Clinton’s BMI of 27.However, Bush can take some small comfort in knowing that the fattest presidents have not done well. BFL lists four with body fat of more than 28 percent: Taft, McKinley, Cleveland, and Taylor. Taylor had the highest body fat (over 30 percent); Taft, whose girth forced the White House to install a specially designed tub, had the largest body-mass index (45).The Cream and the Clear: The dean of presidential health stories, Dr. Lawrence Altman, led his New York Timesstory exactly as the White House hoped: “President Bush has purposely lost eight pounds since his last medical checkup.” I’m no doctor, but “purposely” is a hack term, not a medical one. We know the president weighs less than he did in December—who among us does not?—but on the question of why he weighs less, we have to take the White House’s word for it.In December, Bush tipped the scales at 199.6 pounds, a number too close to the dreaded 200 mark to inspire much trust. High-school wrestlers have spent entire weekends sweating in garbage bags to achieve similar results. Bush blamed his bulge on politics, saying he had eaten too many donuts during the campaign.It’s not impossible that Bush won re-election because he looked like “a pile of donuts.” But Bush’s sharp, sudden weight loss since the election raises a far more disturbing paranoid theory: Was the president using steroids?Mark McGwire’s congressional testimony showed the world what someone who allegedly used steroids looks like after they allegedly stop—a lot thinner. Bush bulked up during a campaign that was based entirely on showing voters he was stronger than his opponent. This season, like many baseball players afraid of baseball’s new random steroid testing, he shows up suddenly looking a lot thinner.  As a devoted fan of the institution of the presidency, The Has-Been hopes against hope that these allegations are false. Like his weight loss, the other evidence on Bush’s steroid use is purely circumstantial: Bush values muscle, owes his pivotal victory in Ohio to Arnold Schwarzenegger, and as a longtime baseball man would know where to get steroids if he wanted. Bush used his 2004 State of the Union Address to denounce steroids, and what kind of president would mislead the country in a State of the Union?Little Blue Pills: But as Arnold might say, the history of steroid allegations has been where there’s smoke, there’s fire. Alas, the evidence against Bush keeps mounting. Today, Major League Baseball suspended longtime Bush pal Rafael Palmeiro because he tested positive for steroids. In March, Palmeiro told Congress, “I have never used steroids. Period. I don’t know how to say it any more clearly than that. Never.” Now, in a spin that won’t fool Dr. Lawrence Altman, he says steroids didn’t enter his body “intentionally.”As the Washington Post reported in July, “Palmeiro and Bush have been friends since the 1990s.” Bush called Palmeiro after his 500th home run in 2003 and again after his 3,000th hit last month, this time inviting him to dinner at the White House.Palmeiro was averaging just eight home runs a season in four years in the big leagues when he joined Bush’s Texas Rangers in 1989. With the Rangers, his output exploded. In 1993, his last season under Bush, he hit 37 homers. Accused steroid user Sammy Sosa and confessed steroid addict Jose Canseco played for Bush as well.Until now, Bush had a seemingly bullet-proof defense: If he were involved with steroids, Canseco would have used that to sell books. Now what Canseco wrote about Bush looks more like a cover-up: “He didn’t talk to us Latinos much.” Tell that to Karl Rove or Rafael Palmeiro.Sluggers accused of steroids often quote Bob Costas: “You still have to hit the ball.” Given the president’s current approval ratings, he might not want to use that defense. … 2:49 P.M. (link)