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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Did Rick Santorum really just say that?

Late Update: It seems he really did. Amazing.

Said Santorum: What the Democrats are doing is "the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' This is no more the rule of the senate than it was the rule of the senate before not to filibuster."

For all the constitutional mischief they're in the midst of making, we should probably thank the 50+ senate Republicans for giving us an extended moment to see so clearly just who they really are.

Remember that this entire political uproar is supposedly about originalism, the need for judges who will interpret the law and the constitution not according to our personal wishes or the political needs of the moment, but according to its original and long-settled meaning. That is, we're told, their aim. And yet to accomplish this they are quite happy to use a demonstrably bogus interpretation of the constitution to overturn two centuries of settled understanding of what the document means and requires.

Before everyone's eyes, everything about the constitution is subservient to their need for power.

Their very victory, should it come to that, is their badge of hypocrisy. Their arguments are all at war with themselves. But they don't care. This is just about perpetuating their own power by any means necessary, using narrow majorities to lock in their power for the long haul.

As we wait on the sidelines for the seemingly inevitable chain reaction to take place on the senate floor, it is worth observing and considering the fact that every Republican senator certainly knows that the proposition they're about to attest to is quite simply a lie. Perhaps they have so twisted their reasoning as to imagine it is a noble lie. But it's a lie nonetheless.

What do I mean?

Whether you call it the 'nuclear option', the 'constitutional option' or whatever other phrase the GOP word-wizards come up with, what "it" actually is is this: the Republican caucus, along with the President of the Senate, Dick Cheney, will find that filibustering judicial nominations is in fact in violation of the constitution.

(Just to be crystal clear, what the senate is about to do is not changing their rules. They are about to find that their existing rules are unconstitutional, thus getting around the established procedures by which senate rules can be changed.)

Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.

Quite simply, the senate is empowered by the constitution to enact its own rules.

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

For all the chaos and storm caused by this debate, and all that is likely to follow it, don't forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn't manage by following the rules.

This is about power; and, to them, the rules quite simply mean nothing.

Can someone help me with this paragraph from Howie Kurtz's article in Wednesday's Post ...

The Newsweek report triggered protests that turned violent in Afghanistan and other countries, causing at least 16 deaths, although the degree to which the article was responsible remains unclear. Pentagon officials have blamed Newsweek, which is owned by The Washington Post Co., for sparking the violence, but Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, said last week that his senior commander in Afghanistan had told him the riots were "not at all tied to the article."


The first sentence <$Ad$> does not necessarily contain a contradiction. One can trigger an event and yet not bear moral culpability for the outcome. But the following sentence leads one to believe that we're not talking about such a subtle distinction.

If I'm not mistaken what Kurtz says here is essentially this: "The Newsweek report triggered riots in which many people were killed, although it's not clear how much the article triggered them. Pentagon officials have claimed Newsweek is responsible, although last week the chief Pentagon official said they weren't responsible."

If someone can help me get my head around this one, I'd be much obliged.

That's a new one.

As we first reported, James Tobin, Bill Frist's Northeast political director at the NRSC in 2002, was the guy behind the New Hampshire phone-jamming scandal from that year.

Tobin now says, in motions filed with the court, that his indictment in the case should be thrown out because the grand jury that indicted him included Democrats.

And in line with Tobin's apparent contention that Republicans now constitute a protected class (will they mind if we call them a 'discrete and insular minority'?) there's this ...

And if the case does go to trial, Tobin's lawyers want to question prospective jurors extensively about their politics and their exposure to media reports of the case to root out potential bias.

A proposed questionnaire would ask prospective jurors to disclose their political party, union membership, whether they've ever had a bumper sticker on their car and what it said, what Web logs they read and whether they ever watch TV shows such as "West Wing," CNN's "Crossfire," MSNBC's "Hardball with Chris Matthews," and "The McLaughlin Group," which mostly runs on public television stations.

Tobin's lawyers also want jurors to describe themselves by checking off all that apply: "aggressive, articulate, emotional, entrepreneurial, intelligent, laid back, loyal, naive, perceptive, stubborn, (or) other."

Federal prosecutors countered that Tobin is required to prove actual bias by the grand jury: He cannot ask judges to assume that Democrats would indict based on their political convictions, anymore than judges can assume Republicans would indict Democrats in violation of their oath to look only at the evidence.


Ye olde right to a trial by your party members.

We've gotten numerous emails telling us that this afternoon on NPR's Talk of the Nation, the host repeatedly, throughout the show, referred to the 'nuclear option' as the word the Democrats came up with to describe abolishing the filibuster. I guess maybe the White House bullying is starting to sink in?

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