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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Did Miguel Estrada tell a fairly obvious untruth at his Senate hearing last Fall?

Last week a New York Times editorial said that when "asked his views of Roe v. Wade, the landmark abortion case, Mr. Estrada responded implausibly that he had not given enough thought to the question."

Now I was curious: what was the actual statement they were referring to?

I looked through the transcript and I imagine they must be talking about this exchange he had with Senator Diane Feinstein ...

MR. ESTRADA: The Supreme Court has so held and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of view that would keep me from [sic] apply that case law faithfully.

SEN. FEINSTEIN: Do you believe that Roe was correctly decided?

MR. ESTRADA: I have -- my view of the judicial function, Senator Feinstein, does not allow me to answer that question. I have a personal view on the subject of -- of abortion, as I think you know. And -- but I have not done what I think the judicial function would require me to do in order to ascertain whether the court got it right as an original matter. I haven't listened to parties. I haven't come to an actual case of controversy with an open mind. I haven't gone back and run down everything that they have cited. And the reason I haven't done any of those things is that I view our system of law as one in which both me as an advocate, and possibly if I am confirmed as a judge, have a job of building on the wall that is already there and not to call it into question. I have had no particular reason to go back and look at whether it was right or wrong as a matter of law, as I would if I were a judge that was hearing the case for the first time. It is there. It is the law as it has subsequently refined by the Casey case, and I will follow it (italics added).

Now statements like these are carefully crafted by handlers and preppers. And their obvious purpose is to allow the speaker to muddle through without really answering the question. Or, perhaps, tell an untruth which can never quite be exposed as an untruth.

But for what it's worth, what does this statement actually mean?

As nearly as I can figure, Estrada is saying that though he has personal views about abortion and is familiar with the legal questions involved, he has never been in a position -- as a judge would be -- of having to sit down, review an actual case with an open mind, read all the relevant cases, and so forth. Now that's implausible on its face. But it turns out also to be almost certainly untrue.

Here's why.

In the Fall of 1988 Estrada was a clerk for Justice Anthony Kennedy. On November 8th, 1988 then-Solicitor General Charles Fried filed a brief with the Supreme Court urging the Court to take up the case which eventually became Webster and to use it to overturn Roe. On January 9th of 1989, the Court did finally grant cert, thus agreeing to hear the case.

Keep in mind that Kennedy was new on the Court and widely believed or at least, by many, hoped to be the one that would provide the decisive vote against Roe. Didn't turn out that way of course. But that's what people thought.

Keep in mind too that, according to Edward Lazarus's book Closed Chambers, the crop of clerks on the Court that year were particularly ideological. The conservatives among the clerks formed what Lazarus -- a clerk that year himself -- called "the cabal."

Now, Estrada left the Court I believe in early January of 1989, right about the same time that the Supremes agreed to hear the case, perhaps a few days before or a few days after. The relevant point, however, is that he was there for the entire period in which the decision was being made over whether to accept the case. At the time, Roe was the issue on the Court and Kennedy was the Justice on that issue. Estrada was clerking for one of the nine Justices who had to do exactly that 'judicial function' Estrada later described. As his clerk, doesn't that almost certainly mean Estrada pretty much had to do it too?

And there's more. It turns out there was another abortion related case being decided that Fall: the so-called "Michael H." case, a case which didn't itself have anything to do with the abortion issue, but which conservatives on the Court intended to use to open up a new line of attack against Roe. Scalia wrote the majority opinion in that case. And his first version, which would have been highly damaging to Roe was circulated in November 1988. Again, that's when Estrada was clerking for the guy who was in effect the Roe v. Wade Justice. (Note: Certainly different clerks work on different cases. In this case, a source tells me, the pool memo on whether to grant cert on Webster was written by a Blackmun clerk, ironically enough. And Kennedy was part of the pool. But in the Supreme Court, on a case of such magnitude, it's simply not credible that everyone there wouldn't have been chattering and thinking about this case and its disposition. Particularly Estrada.)

Nominees often say things that you pretty much know aren't true. But isn't this a case where Miguel Estrada said something that you can pretty much prove isn't true?

Just where is the administration getting all that new money to prevent and treat AIDS in Africa?

There's certainly some new money. But a closer examination seems to show that there's also a lot of robbing from Peter to pay Paul.

There's a new policy analysis up on the Brookings website and it seems to show that a substantial amount of the new money is coming out of money we're already spending to wipe out other diseases in Africa. Here's a key passage (see the italicized section) which comes toward the end of the paper ...

Table 1 clarifies that for the combined total of the Global AIDs Initiative and the Child Survival and Health account (which includes the bulk of HIV/AIDs assistance in H.J.RES.2), the Administration’s request for fiscal 2004 shows no net increase relative to the fiscal 2003 funding in H.J.RES.2. This is because the Administration’s increase of $450 million for the Global AIDs initiative is offset by a $470 million shortfall in its Child Survival and Health request relative to the fiscal 2003 appropriations bill.
What's going on here? I give the administration its due. As the rest of the paper makes clear, there is some new money. But a lot of it seems to be coming out of money we're using to fight malaria, malnutrition and various diseases that can be prevented by vaccination. Why isn't more being made out of this?

A good friend of mine who is terribly shrewd about foreign policy, and opposes an Iraq war from a foreign policy realist perspective, tells me that the problems in North Korea could be one of the consequences. The idea is that our hyperfocus on Iraq distracted us from our responsibilities in Asia, got us into this jam, and now keeps us floundering in it. Somehow though that just doesn't quite add up. I mean, I know it's supposed to be hard to fight two, simultaneous regional wars, as our war-fighting doctrine still envisions. But should it really be so hard to fight two simultaneous diplomatic offenses?

It seems there's some question whether Colin Powell will try to link Iraq to al Qaida in his presentation at the UN. Let's hope not. Why? Because it's just not true. You only find anything to talk about if you set the bar for al Qaida connections so ridiculously low that you'd end up pulling in most of our allies in the region too.

I think there are a number of good reasons for seeking a military solution to the threat posed by Iraq. But some dingbat link to al Qaida isn't one of them. One might say that it's a bad idea to make such arguments because they weaken the credibility of the case against Saddam. But how about just not doing it because the stories are bogus?

Isn't that enough of a reason.

If you're wondering about the second half of the Ken Pollack interview, you didn't miss it. The plan was to run it over last weekend. But after the Shuttle break-up, we chose to hold it back for a few days so it didn't get lost in the shuffle. We'll be running the second half -- which actually has the juiciest stuff -- later this week. Stay tuned.

Here's my second column for The Hill. The topic: the sad consequences of trying to run a manned space flight program on the cheap. Here's a snippet.

Critics contend that NASA is bloated and inefficient. And, to an extent, they’re right. Cost overruns are commonplace, and compared to old-fashioned rockets, the shuttle is very expensive to fly. But it’s possible for an agency to be bloated, inefficient and underfunded. In fact, the latter can sometimes lead to the former. The problem is like that of an under-capitalized business or a falling-apart old car that costs more money in upkeep than it would to buy a newer model.
As I am on Iraq, I'm probably a bit off the reservation in wanting big budgets for the manned space program. But there you have it. Click here to read the whole thing.

You may have seen that in the Times today Fox Butterfield has an article about how a former gun company executive and lobbyist, Robert A. Ricker, has basically seen the light and admitted in an affidavit that, in the Times's words, "gun manufacturers had long known that some of their dealers corruptly sold guns to criminals but pressured one another into remaining silent for fear of legal liability."

Here's the key passage at the end of the article ...

Mr. Ricker said in the affidavit that the idea that all dealers operate legally because they have a license is a "fiction." He added that "the firearms industry has long known that A.T.F. is hampered" by its shortage of personnel and loopholes in the gun laws. For example, he said, the bureau can inspect a dealer only once a year as a result of a law supported by the rifle association.
This month's issue of The Washington Monthly has a dynamite article about how the gun industry helped keep those ATF inspection limits in place.

If a tree falls in the forest and there's no one there to hear it, does it make a sound? Or, in our case, if there's a crisis on the Korean Peninsula and the White House doesn't pay any attention, does it even really matter? That is a proposition the Bush administration seems increasingly determined to put to the test.

Watch very closely what's happening.

According to American satellite intelligence, North Korea is now more or less openly hauling those 8000 spent nuclear fuel rods off to be reprocessed into weapons grade plutonium and then, presumably, into nuclear warheads.

Let's be clear, this is exactly the act we were prepared to go to war in 1994 to prevent.

Now, why are they doing this? There are essentially two theories. One says that they want a deal, which would likely mean diplomatic normalization, various forms of economic aid, and some sort of non-aggression pact with the United States. Under this theory, they're upping the ante because they want to force us to bargain and bargain on their terms. In that case, making a big show of cranking up the nukes makes a lot of sense.

Then there's theory two: the North Koreans wouldn't mind having all those things too. But what they're really set on is getting the bomb, thinking -- not unreasonably -- that it's the one true guarantee against the military overthrow of their regime (and not a bad export crop either). They're using America's temporary distraction with Iraq to 'break out' of the nuclear box so that they can present the Americans with a fait accompli once we're done dealing with Iraq.

Actually, there's a subset of theory two. Some say the North Koreans were always determined to get nukes no matter what. Others point to the Bush administration's 'regime change' and preemption rhetoric as the trigger.

The truth is that we don't really know which of these possibilities is the case. In fact, the North Koreans probably don't either. We tend to over-determine the intentions of our adversaries. Most Korea experts think the North Korean leadership is divided between ardent militarists and others more eager for rapprochement, even at the expense of dumping the nukes. In truth, most think Kim Jong-Il probably tends toward that latter camp.

All of this is perhaps a long way of saying that this is a hell of a complicated situation.

But what are we doing about it? In a word, nothing.

The Bush administration has ruled out force as a means of solving the problem and pretty much ruled out talking too. And that leaves you pretty much with nothing. And that's what we're doing.

It would be one thing if this were a stand off and we could just wait them out. But it's hardly that. They are walking the ball down field in our direction. Each day we do nothing brings those nukes and plutonium one step closer. So again, what are we doing?

Nothing.

It's like that really, really uncomfortable phone call that you so don't want to make. So you just ... well, you just don't make it and you pretend the problem will go away.

The truth is that the administration has blustered its way into a box, ruling out its two basic options -- talking or fighting -- and giving the North Koreans time to strengthen their hand by advancing their plutonium production. They're putting on a cool demeanor like they've got a master plan, but by not admitting that what's happening is a crisis, they're simply letting the situation drift until a nuclear North Korea becomes a fait accompli.

At which point they'll blame it on Bill Clinton.

It's a pitiful situation.

Meanwhile, in a Saturday article which was quickly overwhelmed by the Shuttle catastrophe, the Washington Post reported pretty much exactly what TPM and The Nelson Report were reporting three weeks ago: that the Bush administration had known about the North Koreans' uranium enrichment program for two years before raising the matter with them.

Washington is all abuzz over the nomination of Miguel Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. The intensity of interest stems, in part, from the fact that many believe he is on the fast track to a Supreme Court nomination. The DC Circuit would be a stepping stone, as it often is, to a such a later appointment. In any case, there's a lot being said about Estrada's appointment both pro and con. On Crossfire Estrada's friend Ann Coulter told Paul Begala that, "the second [Estrada] gets in there, he'll overrule everything you love." But I'm not sure he's designated her an official spokesperson. In any case, what surprises me is that no one has raised the fact that Estrada was one of the lead lawyers on President Bush's legal team arguing the Florida recount cases. According to this article in The American Lawyer (helpfully reproduced on the Gibson, Dunn & Crutcher website), Estrada was one of four other "lead partners" on the team Ted Olson put together to make now-President Bush's arguments about why to shut down the vote-counting in Florida. That's certainly something I'd want to know more about.

An important point for me to add regarding the Easterbrook piece mentioned below. Definitely read it. It's important. But I don't share the lack of enthusiasm about manned space flight which comes through in his new piece today in Time.com. Nor do I agree with all the particulars in the exhaustive earlier Monthly article. Just wanted to make that clear. More soon.

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