“Constitutional Scholar” Follies

Noted constitutional scholar, conspiracy theorist, sock puppet and all around frustrated guy, Glenn Greenwald, has a melt down over the spinelessness of the Democratic majority. Not to disagree with him, I agree they are spineless, but this little diatribe is profoundly silly.

First of all, if the Democrats had a spine Mukasey would have been confirmed by a much larger margin. Many Democrats only voted against him to appease the likes of our little ragged piece of footwear, much like the last spineless attempt to appease the net-roots by impeaching Cheney. Let me quote Bilby to refresh your memory:

Okay, so to get things started Steny Hoyer introduced a resolution to table (kill) the resolution. At first it looked as if the motion to table would pass handily, with all the Republicans and enough Democrats voting that way. Then the Republicans got sneaky. A bunch of them decided to change their votes to stop the motion, thereby giving Kucinich, and presumably the rest of the Democrats who voted his way, what they wanted; for the matter to be debated. The vote ended up 251-162 against tabling the resolution. Yay! The moonbats should have then been ecstatic! Finally the House would debate impeaching Cheney for allegedly lying us into war. But no. A short time later another motion was introduced by the Dems to send the resolution back to committee, which as mentioned is almost as good as killing it. Guess what happened? 81 of the Democrats who voted against tabling the resolution when they were pretty sure they would be on the losing side turned around and voted for sending it to the Judiciary Committee. Ouch! They wanted to make it appear they were all for bringing impeachment up for debate (and appeasing the nutroots), but when it looked like it would really happen they ran to stop it!

The key is they didn’t want to try and impeach Cheney, they just wanted to have it off the table, but their vote on record so the netroots would be appeased. A point Greenwald can’t seem to get his mind around is that the positions he champions are not as popular as he has convinced themselves they are. The same thing with Mukasey. Voting against him plays well with he and his clique, but not so well, or even noticed, by the rest of the country.

More pathetically, our constitutional expert is all confused about the whole 60 vote majority requirement in the first place:

The so-called “60-vote requirement” applies only when it is time to do something to limit the Bush administration. It is merely the excuse Senate Democrats use to explain away their chronic failure/unwillingness to limit the President, and it is what the media uses to depict the GOP filibuster as something normal and benign. There obviously is no “60-vote requirement” when it comes to having the Senate comply with the President’s demands, as the 53-vote confirmation of Michael Mukasey amply demonstrates. But as Mukasey is sworn in as the highest law enforcement officer in America, the Democrats want you to know that they most certainly did stand firm and “registered their displeasure.”

McQ dances on the sock puppet’s hamper:

Of course. Or it could have something to do with regular legislative business in the Senate requiring 60 votes and judiciary committee nominations, by agreement, not requiring them. How soon we forget all the talk about the “nuclear option”, the “gang of 14″ and the difference between a judicial filibuster and a legislative one.

Heh, well, I guess Mr. Greenwald won’t be putting that post as a link on his resume. Read the rest of McQ’s post if this didn’t remind you of how the senate works.

Andrew Sullivan takes him seriously, Alex/Thoreau seems to miss the point as well. Sadly, as Bilby notes, Marty Lederman even ran with it, though he certainly should have known better. I think he woke up pretty quick to his lack of judgment in paying attention to a sock rather than thinking about it for himself and just plain old pulled the post. Not that that is how such misgivings should be handled, but it is certainly preferable than Greenwald’s course, which will be to ignore it because his fans will not care, or come up with a weaselly explanation. Marty however, is an expert on constitutional law, a good mind, and possessed of a good bit of integrity, so no way is he going to keep something like that up. I think a simple ‘hey, quick post, not enough coffee, ignore anything to do with that issue I wrote” would suffice, but I get it. A warning about the dangers of even experts following the lead of a paranoid puppet made from old socks would probably be a service to his readers, but we cannot all take up that cross.

Update: Buck Naked Politics, The Booman Tribune, and Cernig miss the flaw in Greenwald’s analysis as well. Michael here at A Second Hand Conjecture is rather scathing.

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7 Responses to ““Constitutional Scholar” Follies”

  1. on 10 Nov 2007 at 3:17 am Bruce Moomaw

    Actually, Greg Sargent reports that Reid had two possible reasons for not allowing a filibuster — both of them different from both your and Greenwald’s reasons: http://tpmelectioncentral.com/2007/11/reid_allowed_vote_on_mukasey_in_exchange_for_military_funding_bill.php .

    As for Greenwald’s positions being not very popular with “the rest of the country”: I wouldn’t be too confident of that, given that Nov. 3 CNN poll showing 58-40 opposition to waterboarding “suspected terrorists”, and the Sept. 12 Rasmussen poll showing 64-16 support for the idea that a search warrant should be required for the government to obtain customer lists from Internet providers. It would appear that the American people are not quite as ready to sell out fundamental civil rights to the Committee of Public Safety as Bush’s small clump of remaining supporters thinks.

  2. on 10 Nov 2007 at 3:25 pm Lance

    Bruce,

    Thanks for the comment. Those may be considerations about why they didn’t chuck the rules they had set up, but that was the agreement. The question Greenwald asked was where was the 60 vote requirement? The answer is that it doesn’t exist in these cases. If he had made an impassioned argument that this was the time to junk the thing that would have made some sense. His piece was just silly.

    On the polls, Greenwald keeps making that argument as well, but I think he is misreading what the polls are saying. The Democrats may be spineless, but they are a bit more in touch with their constituents than Greenwald is, who is just hoping wishing things are so will make them so. Just like the misreading of the “ending the war immediately is what the public wants” polls, the Democrats knew that there would be a political price to pay for doing that.

    I would have answered the same way as the majority on both of those polls. Granted, I am not a Bush supporter, so that may taint the relevance, but I wouldn’t feel like voting to confirm Mukasey would conflict with either of those poll answers either.

    In fact, let us look at the first question. For the sake of argument, assume we are talking about someone who was not only in favor of waterboarding KSM, but enthusiastically so. Let us assume he also doesn’t think it is torture, the insensitive clod. In fact, let us just say that he would feel actions which almost anyone would consider torture are fine to use on ole KSM. You know, electric shocks to testicles, whatever was felt was necessary. That person could easily answer the question no as well. He would quite reasonably (if not legally on the mark as to what suspected can mean) reply, KSM wasn’t a “suspected terrorist.” Which in common parlance he was not. He was a terrorist, and a terrorist mastermind, the most evil sort of person we can imagine. A murderer of children, a head sawer, the whole nine yards.

    What that question shows is that people don’t want people who really are just suspects, waterboarded to force confessions, etc. What should disturb you, and disturb me, is that 40% of the electorate does think that is okay. Though I suspect many of them are probably considering the case of KSM, not suspected johnny jihadist swept up in a raid on a safehouse in Kandahar. At least we should hope so, or this whole controversy will have cost our nation deeply when it comes to the humane treatment of potential enemies. A consequence that I have pointed out is quite likely if we do not do a better job of acknowledging the real ethical dilemmas around this and just prance around preening our morally superior selves. Once you tell people that even considering waterboarding or other techniques in the case of a KSM shows what a moral cretin your are, that it isn’t even worth considering if it saves thousands of lives (which of course is an issue in and of itself) you can be pretty much sure that a great many people will just chuck the whole discussion. My impression is a lot of people have. They have tuned us out.

    I suggest that if you want an answer to how the public really feels on this, ask if they are happy KSM was waterboarded. Make sure in the question they know who he is, why he was interrogated, and throw in that he underwent the treatment for all of 2 minutes (I know, maybe the reports are lies, but for now, let us see what happens) I bet that 40 number becomes at least a 60 in short order.

    As for the other poll, of course. You would have gotten the same response from Glenn Reynolds, Roger Simon, Jonah Goldberg and probably Hugh Hewitt, myself and most of the known universe. I am being serious Bruce, do you really believe that is the kind of issue that separates most people? I mean that with some surprise, because while I expect conspiracy theorists like Greenwald to argue that those who disagree with him believe things they don’t, I would hope that doesn’t describe you. I am tempted to just shrug it off as a bit of rhetorical excess, which we are all guilty of at times, but I will let you answer for yourself.

  3. on 10 Nov 2007 at 7:54 pm Lance

    Oh, and about Sargent’s analysis. I think a key element that supports my thesis is that even had they chucked the agreement and filibustered, the Republicans would likely have broken it. That should tell you the politics of this are not what GG thinks they are.

  4. on 10 Nov 2007 at 8:44 pm damozel

    Why, I wonder, do you find it necessary to call names in presenting your arguments against Greenwald (no more a “sock puppet” than any of us, including you and I, who take a position that favors one side or another)? An ad hominem argument is intrinsically fallacious and—by revealing your lack of detachment—causes me to doubt the rest of your argument. Like my colleague at Buck Naked Politics (who is not a Democrat or a liberal, by the way), I—admittedly a Democrat—have an open mind. I can’t tell how much of your analysis is persuasive because you fill it up with insults to Greenwald (who is often, though not always, right) which immediately puts me off.

    As a Democrat, I will be the first to criticize the Mukasey confirmation, though not for the reasons you cite. Reviewing his history as a jurist, I find that he does seem to endorse Bush’s dangerous “unitary executive” theory. I don’t care for Bush’s expansion of executive power and I don’t think you’ll care for it either if it falls to Hillary Clinton to wield it. I find it significant that Mukasey was unable to take a stand on the issue of whether waterboarding is torture or whether the president is prevented from ordering. To me, this indicates that he is of a piece with other Bush Administration officials—see Sara Taylor’s testimony—who are taking their oath to the president rather than the constitution.

    If, as I discuss in the above-linked post, the confirmation resulted from back-room negotations, it was not an instance of “spinelessness” but of something much, much worse.

    I am fully prepared to criticize the current crop of Democratic incumbents as not so much spineless but so cautious about losing their seats that they won’t take a stand that their constituents support. Which is as pathetic as the apologists for the Republicans who let Bush ride roughshod over the constitution.

  5. on 10 Nov 2007 at 10:18 pm Lance

    An ad hominem argument is intrinsically fallacious

    Actually that is logically false. I can give you the citations on why if you wish.

    For the most part I do not engage in ad hominems however, so the claim that I “must” do that is also false. I make an exception for GG (and his closest associates) who does little but mount ad hominem arguments by the way.

    who is not a Democrat or a liberal, by the way

    I am well aware of that, the link wasn’t intended to be partisan, just show who has commented.

    no more a “sock puppet” than any of us

    That is plainly not true. I have never done anything along the lines of GG in that regard. I would humbly suggest it is unlikely you have either, but you know better than me on that.

    I don’t care for Bush’s expansion of executive power and I don’t think you’ll care for it either if it falls to Hillary Clinton to wield it.

    I am not a supporter of that theory either. I am not aware of many people who are, so we should probably take it up with Yoo. As for Mukasey, I haven’t seen that evidence persuasively argued (Greenwald’s evidence is as typical, tendentious and without context.) Not that it matters since I haven’t called for his confirmation, or for it to be opposed. That isn’t what the post is about.

    I find it significant that Mukasey was unable to take a stand on the issue of whether waterboarding is torture or whether the president is prevented from ordering. To me, this indicates that he is of a piece with other Bush Administration officials—see Sara Taylor’s testimony—who are taking their oath to the president rather than the constitution.

    The second sentence does not follow from the first. That is not evidence, it is an assumption you are predisposed to make.

    but so cautious about losing their seats that they won’t take a stand that their constituents support.

    Cautious yes, and for good reason. It is likely a net loser, despite your contention that their constituents support it.

    Which is as pathetic as the apologists for the Republicans who let Bush ride roughshod over the constitution.

    I guess that is supposed to be me, but my argument isn’t that he doesn’t, just no more than others. Of course, that may be because I believe many things to be unconstitutional that you do not. I don’t see Bush as any worse than Clinton, and a good bit better than Roosevelt. The world hasn’t ended because the former two were in power, I don’t expect it will now. GG, and maybe you, can’t stand to admit that. Instead he engages in the most vicious of smears, filled with distortion, lies, and the galling habit of insisting he knows what people mean when they say somethingbetter than they do. All to justify his paranoid conspiracy theories.

    I am still waiting for him to apologize for just one of the many people he has called liars who it turned out later, were not. As his good friend Mona says, he never, ever admits he is wrong. She feels his strengths outweigh that fault. I think the things she consider strengths are faults as well. Fanatics usually do consider strident and mendacious, or as she says, “take no prisoners,” rhetoric as a strength. Pardon me for finding his mendacity offensive. It was not meant as a reflection on you or co-bloggers, as I said, the link was non-partisan. I don’t expect people to catch his nonsense on every issue, though certainly he should have.

  6. on 10 Nov 2007 at 11:47 pm Bruce Moomaw

    Come on. As Kevin Drum said yesterday: ( http://www.washingtonmonthly.com/archives/individual/2007_11/012470.php ): “We’ve got an attorney general who acts like a refugee from a Communist reeducation camp, dutifully reciting party-line nonsense dictated by his superiors even though he plainly doesn’t believe a word of it. What a shameful episode.”

    As for the circumstances under which torture of POWs should be allowed or not allowed: well, that’s the kicker, isn’t it? Just what ARE those circumstances, and why should one man by himself — at any point in the chain of command — be allowed to define them? But that, of course, is just what this administration is stubbornly holding out for. If we are EVER going to allow torture, we damn well need something like the FISA Court to state when it’s permissible — specifically, unanimous or near-unanimous permission by multiple judges not all of whom were appointed by the same man. (And we had better officially call it what it is — a “Permissible Torture Court” — rather than resorting to any comforting euphemisms.) But, as I say, the Bushites are frantically trying to dodge that possibility — and Mukasey showed he’s willing to cooperate with them, using arguments so obviously facetious as to be ludicrous.

    Oh, and as for no conservatives favoring the government being able to obtain lists of ISP customers without a warrant: take that up with the Administration, which is enthusiastically in favor of it — and of continuing it. (And as for your sarcastic reference to those “insensitive clods” who believe waterboarding is torture: I presume you’re including the US military, which has always officially labeled it as such whether they’ve been trying Japanese officers for using it in WW II, or US soldiers for using it in the Aguinaldo Rebellsion and in Vietnam. I’ve always thought that a large part of this administration’s appalling military fumbling has been due to the fact that Bush and Cheney both carefully dodged wartime service, and so have no idea what military life and procedures are really like.)

  7. on 11 Nov 2007 at 12:47 am damozel

    Thank you for replying to my email. I agree with the preceding and—while deferring to your greater knowledge of logical fallacies and ad hominem attacks (I’m just going by what I learned studying it in college)—simply assert once more that name-calling undercuts the effectiveness of your arguments unless, of course, you have no interest in persuading people who think differently from you. It’s fine to call names if your only interest is in preaching to the choir. If you want to persuade people who disagree with you, you aren’t going to get there by referring to someone whose views they may share (or sometimes share) as a sock puppet.

    For example, while I could see you have an interesting point of view, and wanted to try to understand it, I was immediately so indignant that you tagged Greenwald a “sock puppet” (whatever you mean by it) that I couldn’t really give you a fair hearing. I was curious about the alleged “flaw” in his argument, but his being a sock puppet or not isn’t really germane.

    Perhaps the fallacy in the ad hominem argument is in assuming that after you’ve attacked the person, you’re still going to be able to get a fair hearing from people who might have a regard for him.

    This is a point I often find myself making to bloggers from both the right and the left. I am sure I’ve been guilty of it myself. I’m just telling you how it affected me with respect to your argument.

    Otherwise, I’m inclined not to carry on arguing, since this is your website and you let me have my say.

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