Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Now that the Supreme Court isn't going to walk Douglas Forrester across the finish line in New Jersey, things just seem to be going from bad to worse for the one-time, future, accidental Senator from New Jersey. He's campaigning with all the grace and pizzazz of a live fish on a hot griddle.

Today Forrester denied Frank Lautenberg's claim that he supported Social Security privatization, only to have it revealed that his primary campaign website endorsed just that policy.

Then later in the day Forrester made the shrewd call of attacking Lautenberg for being too old. Following up on his earlier challenge to debate Lautenberg 21 times in 21 days, he said "It doesn't have to be a three-hour debate every day. That may be too much for him."

When called on this gaffe, Forrester denied any effort to call Lautenberg's fitness for office into question. Then, however, he apparently realized that if he kept his mouth shut he wouldn't be able to keep this helpful insult-senior-citizens campaign angle going. So he jumped again into the fray, claiming that it was hypocritical for Lautenberg to accuse him of making age an issue when he, Lautenberg, had made age an issue when he first ran for the Senate against Millicent Fenwick in 1982. The idea, presumably, was to expose the 78 year old Lautenberg as the real denigrator of the aged. "There should be no age limit," intoned the rapidly deflating Forrester, "But there should be a limit on hypocrisy."

On Tuesday, TPM has it on good authority, Forrester will launch a stinging new attack on Lautenberg's unseemly habit of cavorting with smelly poor people.

There's an excellent -- and intelligently assigned -- piece today in the Washington Post about the Lautenberg/Forrester race. The raging national debate about the late New Jersey ballot change from Torricelli to Lautenberg seems more like just a rage on the part of Republicans and talk radio denizens. (All yada and yada, signifying nothing, to update the classic line ...) In New Jersey, everyone but hardcore Republicans seems fine with it. As they should be.

It's sometimes difficult to fathom what ridiculous hypocrites Republicans are when it comes to election law and the courts. It turns out that back in the primaries Douglas Forrester, rule-of-law crusader from parts North, had his own problem with a last-minute ballot change. Here's a few grafs from today's New York Times ...

Mr. Genova [the Democrats' lawyer] also uncovered a legal memorandum from Mr. Forrester lawyer written in April, when State Senator Diane Allen, one of Mr. Forrester opponents in the Republican primary, was trying to block him from taking the ballot position of James W. Treffinger. Mr. Treffinger, the Essex County executive, had resigned from the race because of scandal three days earlier, or 40 days before the primary.

Senator Allen maintained that moving Mr. Forrester name to Mr. Treffinger's place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg's placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

"Strict compliance to statutory requirements and deadlines within Title 19," Mr. Sheridan wrote, "are set aside where such rights may be accommodated without significantly impinging upon the election process."

It first seems worth pointing out that if the United States Supreme Court is inclined to throw Frank Lautenberg off the ballot they would appear to be obligated to throw Forrester off the ballot too, since his primary candidacy was also a violation of state election law.

Now, I had heard about this issue before but I hadn't realized that the comparison was that spot-on. It's the same 51 day deadline. The Times asked Sheridan about the seeming contradiction and he replied that the two cases were not similar because "no primary ballots had been issued" last April when the earlier controversy took place and today 1600 absentee ballots have already been sent out.

But this argument only shows that Sheridan is dull as well as hypocritical. He seems to be arguing that the relevant issue is not the inviolability of the deadline but the practical effect of allowing a change after the deadline takes place. He says that in April it was okay to make the change because no ballots had yet been printed and thus no harm -- nothing "significantly impinging upon the election process" -- could come from listing different names on them when they were printed. In other words, the deadline is simply an administrative guideline and if changes can still be made after that date passes, then they should be.

What Sheridan doesn't seem to realize is that this argument is already taken. The Democrats have it! And by embracing it, he tears his own case to shreds. The county clerks in New Jersey all said that they could make the changes in time. They could even reissue the absentee ballots. So if the issue is the practicality of making the change and not the inviolability of the deadline then Sheridan has no case.

Forrester has no case.

Even the lickspittle commentators who embraced their case have no case.

A Washington Post editorial today gives Al Gore a rough slap ("Negative Al Gore"). Predictably, I guess, the Post is the repository of this city's most easy-thinking conventional wisdom. In a rebuke to the former vice-president's attack on White House economic policy the Post writes ...

President Bush's main economic policy -- the large tax cut of last year -- was not responsible for any of the current damage. Indeed, given the twin shocks of 9/11 and the post-Enron stock market decline, the short-term stimulus created by the tax cuts has turned out to be fortuitously well timed. To be sure, parts of the tax cut that have yet to be implemented, especially the repeal of the estate tax, are unaffordable and ought to be repealed.
Mickey Kaus chimed in with "WaPo acknowledges what Krugman won't about the Bush tax cuts."

But does the Post's remark even make logical, let alone substantive, sense? The Post begins by saying that the Bush tax cut -- which must be what they mean by his "main economic policy" -- is not responsible for any of our current economic situation, by which they mean, in large part, the rapidly ballooning federal deficit.

With respect to the deficit, this is largely true. This year's deficit is caused to only a fairly limited degree by 9/11 or (as opposed to the deficits for the rest of the decade) the Bush tax cut. The culprit is a flagging economy and what one must imagine is a virtual surcease in the fat capital gains tax revenues which floated the federal budget through the end of the last decade.

So far so good.

But then the Post says that "the short-term stimulus created by the tax cuts has turned out to be fortuitously well timed." This makes no sense. Very little of the tax cut has even been implemented yet. That's why the White House -- and the Washington Post -- can accurately say that the administration is not responsible for this year's deficit. Is the Post talking about the stimulus which Republican flacks sometimes claim comes from the expectation of future tax cuts?

It's true that some of the tax cuts have kicked in -- largely the middle-class rebate checks foisted on the president by Senate Democrats, which are rather small. But, in any case, one can either have real stimulus, which might get some credit for buoying the economy, and also ballooning the deficit. Or one can have neither. The Post picks and chooses to sustain the logic of their editorial.

It's an example of the crying sin of much recent political journalism and commentary -- not bias of the right or the left, but reflexive special-pleading on behalf of the Bush White House.

There is a chilling, even terrifying story unfolding in Washington, DC, though I don't know how much play it's getting outside of this area.

Yesterday morning someone shot and killed five people in the Washington, DC suburbs of Montgomery County, Maryland. Unfortunately, shootouts and other flurries of violence happen not that infrequently. So that in itself might not sound so striking. The details tell the story ...

To all appearances none of the five had any connection to each other beside the fact that they were all out in the open Thursday morning in the area in question. Each was shot dead with a single shot. Police speculate that the killer used a high-powered rifle. And since police reports don't seem to contain any instances of people hearing gunshots or seeing the shooter, it would seem that the shooter was firing at some distance.

So you have someone on the loose who is apparently a very good marksman -- able to kill five people with single shots at seemingly great distances and not be seen. The mix of accuracy, stealth, and knowing where to shoot is unsettling, to put it mildly.

Police now believe that the shooting spree began Wednesday evening with a single shot through the window of an arts and crafts store in Washington. Less than an hour later a man walking across a crosswalk at the intersection of Randolph Road and Georgia Avenue was shot dead in a manner similar to that of those killed the next morning in Montgomery County.

From the facts at hand it really sounds like someone who has training as a sniper, though certainly anyone who was an accomplished marksman could probably pull it off.

The police are obviously taking this all extremely seriously. But they don't seem to have that much to go on. And as you can imagine, if someone can conceal themselves and shoot from a sufficient distance that no witnesses can connect the shooter and the victim, it can be really difficult to catch the guy or even know where to start. Suddenly I'm not feeling so bad that I'm going to be home working this weekend ...

Nothing sounds quite so tinny as self-righteous indignation. Until you come to Republican self-righteous indignation.

TPM continues to be inundated by a flurry of Republicans' emails howling about the outrage of New Jersey Supreme Court decision allowing a change in the election ballots. The normally sensible Senator Bill Frist -- who walked the Republicans' appeal over to the Supreme Court today -- was ridiculous enough to charge that Democrats were trying to "steal an election they could not otherwise win."

(Where these gun-slingers for the rule of law were when Mitt Romney got a pass, and rightly so, on his Massachusetts residency requirement I just don't know.)

Republicans have developed a lot of know-how in the last couple years at stealing elections. But I must confess to a certain confusion about how one steals an election by fielding a candidate. The idea seems to be that for Doug Forrester, Frank Lautenberg is an unfairly strong candidate. And that Forrester is somehow damaged by Lautenberg's electability.

Giving it some thought, and considering the Supreme Court's decisions in Bush v. Gore, it even seems possible that this might be the basis of an equal protection claim for Forrester. Forrester entered the race with the reasonable expectation that he would only face a candidate either equally lame or more lame than him, but not less lame. It's almost an implied contract he has with the state's electorate, right? Putting a new candidate on the ballot now violates this insufferable chump's right to coast into office without facing an actual opponent. But I digress ...

I looked at the NJ Supreme Court ruling and it struck me as a liberal, though not unreasonable, construction of the statute. The court "determined that N.J.S.A. 19:13-20 [the statute in question] does not preclude the possibility of a vacancy occurring within fifty-one days of the general election ..."

Now I'm not a lawyer (and lawyers -- though several are very dear to my heart -- rule the world and elections and so forth) so there's really no point in my giving you my opinion on whether the decision passes muster. But I'd say I feel pretty comfortable with the proposition stated here a couple days back, that election laws should be construed expansively in the interest of holding actual elections -- not just notional elections in which it's the Republican against the Green or Socialist candidate.

Most of the substantive arguments I've heard to the contrary strike me as pretty weak. One commentator says the whole switch is wrong because it deprives Jersey voters of the right to throw Torricelli out of office. But of course that's just a dumb throwaway comment which means nothing.

The other argument one hears is that this decision will set off a wave of candidates taking electoral hemlock days or weeks prior to an election they are destined to lose. Can anyone who makes this argument have ever spent any time around elected politicians? Not a chance. Especially these days with weak parties there's really no institutional force capable of knocking a candidate out of a race. And people who run for office just don't have egos that work that way. To put it mildly.

The real public good question, it seems to me, is just what harm anyone has suffered through this decision. I can't see one, save Doug Forrester being forced to run against an actual candidate. Unfortunately, the appeal the Forrester campaign has made to the United States Supreme Court turns on precisely the same principle which the Court's 5-4 majority created out of whole cloth in order to find a way to turn the 2000 presidential election to George W. Bush. So consistency would dictate their intervention in this case too. Here consistency may be the handmaiden of travesty.

The money quote from the New Jersey Supreme Court ballot case came from Justice Peter G. Verniero, a former Chief Counsel, Chief of Staff and later Supreme Court appointee of former Governor Christie Whitman. "Didn't Mr. Forrester call for Mr. Torricelli to withdraw?" he said in response to a protesting Republican attorney during oral arguments. "Was he expecting to run unopposed?"

That about sums it up.

The Forrester campaign is now headed to the United States Supreme Court, the normal recourse of Republicans who can't win elections with majorities but aren't inclined to see that as the end of the story.

I've received a lot of emails in the last couple of days from people saying I'm ignoring the importance of the deadline which prescribes that in New Jersey candidates have to pull out 51 days before an election to have another name put on the ballot. There's certainly a good argument there. Just not the best argument. I'm reminded of earlier this year when Massachusetts Democrats tried to knock Mitt Romney out of contention for the governorship because there may have been some problem with his Massachusetts residency status. I thought that was wrong; just as I think this is wrong for Republicans to do. The unanimous decision of the New Jersey Supreme Court -- which is heavily stacked with Republican appointees -- I think gives a lot of credence to that view.

Some readers who have written in tell me that this is a recipe for electoral chaos, that every time a candidate looks like he's going down the tubes he can just pull out and bring in a ringer. There's a superficial logic to the argument. But such arguments toward practical effect must withstand some measure of logical scrutiny and this one really doesn't. When filing deadlines come down how many candidates do you usually see rushing to cash out their candidacies? Right, not many. The sort of people who run for elective office just don't do that sort of thing. And in how many of those cases is there another credible candidate waiting in the wings? Not often. If there were, that other candidate probably would have won the primary. Say what you will about what happened here, it's hardly likely to become a pattern.

And so after a long intermission we return to the case of Richard Perle, meddler.

As TPM noted, almost a year ago to the day, Perle is a long-time heavyweight in neo-conservative foreign policy circles. He is also the Chairman of something called the Pentagon's Defense Policy Board. The DPB used to be a rather out-of-the-way affair, but Perle's transformed it into an important advisory council within today's Pentagon. By any real measure, he's a member of this administration.

Yet around this time last year he was going on virtually every chat show there is and attacking Colin Powell for disloyalty to the president. And he was getting unwary chat show producers to identify him merely as an 'assistant secretary of defense' from the Reagan administration.

Point being, Perle was trying to have it both ways, being an administration player one day and an outside critic the next. And the administration was letting him get away with it.

Numerous embarrassments followed.

It was Perle who invited the off-kilter, former Lyndon LaRouche follower Laurent Murawiec to give a presentation at the Pentagon advising the US essentially to declare war against Saudi Arabia. As we noted at the time, the real crime of Murawiec' presentation -- which was later published by Jack Shafer in Slate -- wasn't so much the controversy it created as the fact that it had all the appearances of being written by a precocious nine-year-old. But, alas, I digress ...

Now Perle is at it again. According to the Iranian news agency IRNA, Perle just gave an interview to the German daily Handelsblatt in which he said Gerhard Schroeder, the recently re-elected German Chancellor, should resign because of the allegedly anti-American campaign he recently ran. A Pentagon official saying something like that is a big deal.

It's actually rather similar to the article he wrote about exactly one year ago in Britain's Daily Telegraph derisively attacking the British Foreign Secretary.

This is foreign policy freelancing -- irresponsible and often shameless behavior. Beside the behind-the-scenes mischief Perle cooks up, these comments of his are routinely reported in the foreign countries in question as comments of a 'senior Pentagon advisor' or some similar formulation and -- as Perle clearly intends -- the comments carry the impression that he is speaking in some capacity for the administration. It's shabby behavior and low intrigue. An administration of pros wouldn't tolerate it.

A couple months ago I told Nick Confessore that I doubted the Democrats would be in much danger of losing control of the Senate come early October. An article questioning why Democrats weren't making more of an issue of that danger or why they weren't trying to nationalize the election around fears of unfettered, one-party control of the federal government, I told him, might fall on deaf ears.

Well, chalk one up for Nick Confessore.

Don't get me wrong. I'm not pessimistic about Democrats chances of holding the Senate. But a number of factors -- the crisis over Iraq primarily, but also a number of curveballs from left-field -- have really thrown the contest wide-open.

And now Nick's new article -- which is the cover piece in the new issue of the Washington Monthly -- looks uncomfortably on target and relevant.

A few days back New Jersey Republican Senate candidate Douglas Forrester called on Bob Torricelli to resign. Now Torricelli's in effect done that and Forrester says it's not fair and that no new, clean Democrat should be allowed to take his place on the ballot. He's complaining. The heads of the Republican Senate committee are complaining. Everybody with a parenthetical 'R' after their name is complaining.

From what I can tell, the legalities of getting a new name on the ballot at this late stage are unsettled. But I was disappointed this morning when I saw some people who should know better claiming that it was somehow an outrage for the Democrats to try to field a candidate and give New Jersey voters an actual election next month.

Election law -- as we saw in Florida two years ago -- is the most vexed kind of law in a democratic society since it sets such powerful interests against each other -- the rule of law and democracy. In a democratic society, the presumption in favor of putting significant questions before voters should almost always prevail. If New Jersey law is crystal clear on this point, and it specifically bars any means of putting another name on the ballot, then so be it. But if there's a legal way to do it, then it should happen.

This is the advantage Democrats do have and should have in this case. In a democratic polity, the absence of black letter law to the contrary, the interests of democracy -- having real elections -- always trump procedural squabbling.

The rather shabby truth here is that Republicans understand that Forrester could only get elected in a state like New Jersey not simply if he were facing a bad candidate but essentially no candidate.