P8kice8zq6szrqrmqxag

Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Talking Points is announcing a new contest!

Who can come up with the most brazen and dishonest (and/or moronic) Republican use of the 'Hey, it wasn't a 5-4 decision, it was a 7-2 decision' line about the Supreme Court decision?

(Just so we're all on the same page. Seven justices - all but Stevens and Ginsburg - said there were, or might be, equal protection problems raised by the Florida recount. But two of those (Breyer and Souter) raised real questions about whether this was actually the case - and, far more importantly, thought the problem could be resolved with a directed remand to the Florida court. Alright, do we understand each other? Send submissions here.)

I'll start the ball rolling with George Will today on This Week. I'll post the actual quote when I get a hold of the transcript.

P.S. Know what the new "L" word is? "Legitimacy," of course. On Meet the Press today Dick Gephardt wouldn't use it about George W. Bush. That's brass-knuckles.

Just finished reading Jeffrey Rosen's indictment of the Supreme Court's decision in Bush v. Gore in the new New Republic -- a trenchant and devastating analysis of the court's decision. I almost don't recommend reading it. Because it's hard to do so and not get even more outraged about what the Court conservatives did.

Rosen stops short of accusing the conservatives of purely political intent in deciding the case in the way that they did. He implies that they believed they were stepping in to end a galloping legitimacy crisis which was about to spin out of control. They were acting, he surmises, on a sort of subtextual 'this has gone on long enough' reasoning. So they abused their oath, but to serve what they believed to be a higher purpose.

I wonder if this is what Rosen really believes or whether he, perhaps rightly, stopped short of accusing them of narrowly political motives because of the impossibility of proving such an allegation, and the explosive nature of the charge. In any case, it's a very good piece.

There is an interesting thread, or instance of crosstalk, running through the opinions which I haven't seen noted elsewhere. In Rehnquist's concurrence on page 4, in the course of justifying the Court's obligation and power to overrule a state high court's interpretation of state law, Rehnquist relies on two Civil Rights-era cases wherein the Court stepped in to shut down legal funny business perpetrated by segregationist state courts. Considering how many African-American voters had their votes thrown out in Florida and the … well, less than civil rights-friendly jurisprudence of Thomas, Scalia and Rehnquist, this is more than a cruel irony. It's more like sick humor. (See this article on Rehnquist's early work as a Republican political operative assigned to harass African-American voters.)

And it's a vicious irony not lost on Justice Ginsburg, who seems to have taken particular offense. "[T]his case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court," Ginsburg writes on page 6 of her dissent. "The Florida Supreme Court … surely should not be bracketed with state high courts of the Jim Crow South."

Too true.

I wonder if this was behind her sharp "I dissent" which she used to conclude her opinion instead of the standard "I respectfully dissent."

She might also have noted another ironic inversion: In the cases cited in the Rehnquist concurrence, a civil rights US Supreme Court was stepping in to block the plainly injudicial acts of rogue Southern state high courts. In this case a rogue US Supreme Court was committing an injudicial act to block the efforts of a civil rights Southern state high court.

Now that's progress!

P.S. I guess pointing this out would be too much even for Ginsburg. After all, dropping a "respectfully" is already pretty much their way of saying "Hey, You Wanna Piece a me?!"

Three excellent articles Talking Points recommends for your reading.

This article by Jack Beatty in Atlantic Unbound gives an impassioned, angry, and absolutely first-rate run-down of all that went wrong in Florida. You'll probably know the basic facts but he puts it all together in a way that only a first-rate writer really can. Read it and you'll be glad you did.

A nice Salonish article in (you guessed it) Salon about why Bush's speech to the Democratic Texas House of Reps was a bit of a sham. A lot of Dems weren't allowed to come. Basically the one's who got invites were pretty much those who either supported Bush's candidacy or as much as did so. A nice metaphor for the reality behind Bush's bipartisanship. Good piece by Jake Tapper. Not sure any of the prestige press caught this.

Finally, this article in Saturday's New York Times is about the prison employees who administer executions in Texas. No Bush-bashing here. Just a very affecting and powerful description of an anguished job and the conflicted men who do it. Not light reading, but really good.

Wow, wow, wow! I'll say it again. Wow!

According to this article in the Philadelphia Inquirer Al Gore's lead in the popular vote now stands at 540,435. Think of that. More than a half a million votes.

I don't want to make too big a deal of this. But I think that at half a million votes Gore's margin pushes past a certain psychological threshold. In the national vote this really wasn't a 'virtual tie.' Bush lost. Narrowly, yes. But he lost (Historical perspective: Jimmy Carter beat Gerald Ford by 678,000 votes in 1976).

Make a note of it and have it on hand for future discussions about Bush's mandate.

P.S. A special TPM shout-out to the Pointster who passed this info along.

Last week I wrote a column in the New York Post, which set out some ground-rules for George W. Bush's appointments (yes, I knew it was all over even then).

The basic gist of it was this: the Democrats would resist the temptation to indulge in a lot of confirmation funny business if Bush would come to grips with the dubious nature of his election and appoint a moderate cabinet. One passage read:

He is simply not in a position to appoint more than a few token conservatives to his cabinet. Certainly none to the marquee positions at State, Justice, Defense and Treasury. And none to Cabinet positions dear to the hearts of his Democratic opposition, i.e., no paycheck-protection activists for Labor Secretary, and no supporters of regulatory rollback at the EPA.
Well apparently W. didn't heed my advice. According to several published reports Bush is considering James M. Talent as a possible Labor Secretary. (Talent retired from congress to run for governor of Missouri this year, and lost.) Democrats should and I believe will see this as an insult, a slap in the face. Dems really care about what the Labor Department does, for obvious reasons. For them it's not just a place to fob off ideologues and hacks who are out of a job.

Why is Talent such an objectionable candidate? Well, he's just very, very anti-labor. Consider his congressional ratings from the National Federation of Independent Business (a conservative business lobby) and AFSCME (the big public employees' union). In 1998 NFIB gave Talent a 100% rating; AFSCME, a 0% rating. That doesn't mean Talent's a bad guy (well, okay … actually it does mean that.) But it does mean that he's about as hostile to unions as you can get.

Senate Democrats should simply say, Jim Talent may be a decent guy. But he's unacceptable for Labor Secretary, period. If Bush wants to go to war, fine. Go ahead. But they should try to make an example of Talent he if does.

The electoral college determines who is president (of course, even here Bush needed 'help'.) But the popular vote determines who gets a mandate. And Bush's 300,000-plus loss in the popular vote is so much less than a mandate that it's not even funny.

So Senate Democrats should say to Bush: Listen, it's cool you're president and all. Someone's got to be president. The Supreme Court says you're president. So you're president. But, between us, we don't really even think you got elected legitimately. So appoint your dads buds. Put in some solid Republicans at State and Defense and Treasury. For Transportation, Commerce, Energy, have at it. Appoint whatever wackos you want. But try to push through someone like Jim Talent for Labor Secretary and we'll eat you alive.

P.S. And in case you're wondering. Yes, Tom Daschle reads Talking Points religiously.

I just came across this article by Deroy Murdock in National Review Online. It's not an article exactly. More like a catalogue of all the major highlights of infantile, conservative self-pity. It even has bullet points! ... We're too nice. The Left is on the warpath. We've gotta learn to fight. Yada, yada, yada.

Headline:   The Right's Too Nice

Deck:   Battle Stations!

Trust me, you'll get a real kick out of it. I give it the Talking Points seal of approval!

Just about every major paper in the country ran an article this morning about Louisiana Democratic Senator John Breaux's meeting today with George W. Bush. And the possibility that he'll offer Breaux a cabinet post. This, of course, is part of the reconciliation-bipartisanship -be-nice-to-me-please agenda which Bush is now pursuing.

But why isn't anyone pointing this out? There is probably nothing that Bush could do right now that would piss Democrats off more than appointing Breaux, and thus reducing their margin in the Senate to 51-49.

Breaux, of course, would be dead to Senate Dems for such an act of betrayal.

I guarantee you, if Breaux accepted an appointment, the day he walked out of the Senate, Tom Daschle would grab him and plant a big, hard kiss right on his forehead (obligatory Godfather reference).

But what about Bush? To Dems on the Hill this wouldn't be reaching out. It would be war.

Is this intentional? Do they want to screw with the Dems? Or is this just a misunderstanding of how Washington politics differs from politics in Texas?

In a weird way I suspect it's both.

P.S. If Talking Points is just brimming over with all these choice insights, you're probably asking yourself, why doesn't he write a column for some major metropolitan daily?

Good question!

Talking Points spent some time last night at a conclave of Democrats (well, mostly Democrats). And the consensus seemed to be ... Bad News: our beloved candidate just lost to a hapless dork who may be less qualified to be president than any candidate in the last century. Good News: our opponent for the next four years is a hapless dork who may be less qualified to be president than any candidate in the last century.

Alright … alright … I can live with that. That works for me.

Speaking of being in the opposition, Democrats now seem intent on making one of the first priorities of the 107th congress.

Isn't this just great politics?

As we've seen, this is a very important issue. Whether or not Palm Beach county threw out upwards of 20,000 ballots in 1996 as well as 2000, it's just an unacceptably high number. So the issue is good on substance.

But think of the politics.

Bush can't run away from the issue, obviously. And yet what is the subtext of the whole debate? We need to reform our election machinery so that the loser in the race doesn't slip through as the winner because a bunch of voting machines don't work right. Isn't that it? Even the Bush-friendly sub-text would be, we have to reform our election machinery so that the 'winner' isn't hobbled and made illegitimate by faulty voting machines.

It's win-win politics for the Democrats.

Finally, now that all the distraction is over, we can get down to the real business of the post-election period: bashing that lousy stab-in-the-back wretch Ralph Nader.

Watch for future posts.

If you're interested in Talking Points' take on Al Gore's wonderful and heart-breaking concession speech you'll have to hop on over to Feed Magazine where it was just published late this morning.

But your visit to Talking Points this morning isn't totally in vain. Let's go to the pictures.

Remember all that talk about the 'rule of law' from those election-grabbing conservative Justices on the Supreme Court?

Rule of law? Rule of law my #%$#!

Above you'll see (in this picture from today's New York Times) a seat-belted Justice Breyer and a seat-belted Justice Souter riding off into the evening in the gentle and protective embrace of the state.

And Scalia?

No seatbelt!

Now this raises an interesting question. Justice Scalia certainly has libertarian impulses which might give him anti-seat-beltist politics. But what happened to strict-construction? What about the rule of law? Doesn't the law apply to everyone?

My read here is that Scalia is just putting his politics above his respect for the law.

But then we already knew that about him, didn't we?

P.S. Talking Points would like to give a special TPM shout-out to the two eagle-eyed Pointsters who clued him in to the political import of this pic.

Please, please, please bring back the subjunctive mood!!! I can't take it. No more 'if Governor Bush becomes president.' Or 'should Bush become the president.' No 'were Bush to be the next president.' Not even the semi-heart-breaking 'assuming Bush becomes the next president.' We're down to 'when Governor Bush is sworn in …' Ahhh! The fatal 'is.' I guess it depends on what your definition of 'is' is. But clearly it doesn't mean anything good.

(Uggh! Candy Crowley on CNN just said the 'Bush Era'.)

Okay, let's go to the Talking Points doomsday grab bag.

1. A Talking Points quote of the day. This one from Lois Frankel, the Democratic Minority Leader of the Florida House of Representatives (basically the Sunshine state Dick Gephardt).

"Let's take our energy. We're going to fix those machines, we're going to register those voters, we are going to learn to vote right and come two years, we will leave no chad behind."
Leave no chad behind! I like it. Even sounds a little like a southerner saying 'leave no child behind.' (Try it. You'll see what I mean.)

2. And now to the decision. If you only read one paragraph in the whole bundle of Supreme Court concurrences and dissents, read Section A of Justice Souter's Dissent. (Hey, don't be so lazy. It's only one paragraph. Trust me, it's worth reading.)

And the most stunning part of the Per Curiam brief (the majority opinion):

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint member of the Electoral College." Section II, B
Perhaps true. But still stunning.

3. Got an email today from a friend sending me a link to a Bush parody based on The Grinch. I went and looked at it and for the first ten seconds it seemed totally moronic (and I started to wonder about my friend). But he's right. It's actually really funny. Take a peek.

4. And finally, inevitably, a picture. This picture comes from The Hindu, one of India's national newspapers. I think many newspapers must have a machine called a goof-alizer. These are special machines that you run a photo through and a relatively normal-looking person comes out looking like a complete doofus. Apparently The Hindu has a damn good goofalizer. See for your self.

What did I tell ya?

P.S. I promise: after this I will get over my hurt about Gore, grow up a bit, and stop making fun of how people look.

LiveWire