The NYT identifies Jamie Gorelick as potentially Obama's pick for Attorney General.

And provides this profile. Under the heading "Baggage":

Her work at Fannie Mae, which had to be bailed out by the government in September as part of a $200 billion deal. Ms. Gorelick left the company just as it was coming under attack for huge accounting failures. She has also drawn criticism for her role at the Justice Department, in which she allegedly created an intelligence “wall” that hindered counterterrorism agents in the years before the Sept. 11 attacks. Conservatives called for her removal from the Sept. 11 commission, but her fellow members rallied around her and said critics were distorting her record. The criticism grew so heated that the F.B.I. investigated a death threat against her family, and President Bush had to intervene personally to stop the Justice Department from releasing sealed reports involving her. Some conservative bloggers have already begun trying to derail Ms. Gorelick’s possible nomination as attorney general, pointing to her experiences at both Fannie Mae and the Sept. 11 commission.

Unbelievably ponderous baggage! Oh, but conservatives have attacked her. Does that somehow cancel the baggage? A better question: Why haven't liberals attacked her?

Beldar seethes:

Short of appointing an actual member of al Qaeda, I cannot imagine a more offensive symbolic repudiation of the Global War on Terror — nor a more enthusiastic embrace of the chronic mismanagement, cronyism, and graft which led to this fall's credit crisis — than the appointment of Jamie Gorelick as attorney general.

I voted for Obama, as I'm sure my commenters are about to remind me, and I'm hoping for the best. He told me to hope! Please don't crush my hope so early, Mr. Obama.

ADDED: "They put stickies on the face of Mohammed Atta on the chart that the military intelligence unit had completed, and they said you can't talk to Atta because he's here on a green card." Something I quoted on Instapundit back in August 2005, which got me accused of "enlisting Glenn" in a "smear campaign" against Jamie Gorelick. Here's how Glenn responded at the time.

So what did you think of Sarah Palin?

A new thread, so you aren't buried down in the 600s in the comments on that last post. But stay on the precise topic to belong under this heading. The issue is only: How did she do?

IN THE COMMENTS: Revenant saiD"

From now on, when a Democrat says "But what if McCain drops dead on his first day in office?!?!?!" I'm going to say "dude -- don't tease me like that."

Prosecutorial Indiscretion said:

The response from the left tells us all we need to know: "You know someone else wrote that speech, right?"

When that's all you have, you don't have much. The speech was awesome, Palin is awesome, and there is palpable fear from the left as they realize that the woman they denigrated as a backwoods PTA mom is going to give them all kinds of hell for the next two months with a big and sincere smile on her face.

john(classic) said:

Given all the slime thrown at her over the last 5 days, I feel like I just watched one of those action films where the hero disappears in debris, smoke, and a roar, the music pauses, and the hero steps forward out of the smoke, samurai sword slung over his shoulder. The music swells.

But I gotta get used to saying "heroine."

Beldar said:

First-inning grand-slam.

By the vice presidential debate, they may have Biden fake illness, give her an intentional walk. She's going to kill them at every single at-bat.

Well, speaking of fake illness, maybe Biden is so ill, he needs to step down. You know, he's reminds me so much of Eagleton. (Just reversing that idiotically insincere Eagleton meme.)

Dark Eden said:

One word: Thatcher

What I said about Sarah Palin on June 12th.

I'd forgotten about this. (Warning: I say "pro-abortion" at one point when I -- obviously -- mean "pro-life.")



ADDED: Here's the Beldar blog post I refer to in that clip.

Paris Hilton does a pro-McCain ad!

See more funny videos at Funny or Die

Oh? You think it's not pro-McCain? Explain why!

(And I'll tell you why you're wrong.)

ADDED, 12 hours later: I guess I owe you an explanation. My reason for calling this a pro-McCain ad is this. First, of course, Paris Hilton is promoting herself, as she always does. She exploited the opportunity that the McCain ad gave her, as she exploits every opportunity. That's very free-market capitalistic of her, but that's not my big reason. McCain's ad presented her as an airhead (for the purpose of suggesting that Obama is also an airhead), so here she is suddenly being very smart. Her ad has her saying something that we are supposed to accept as exactly what a very smart person would say if they weren't limited by constraints of party politics. She presents her answer on oil as a "hybrid" of the 2 candidates' positions, but listen to it! It's McCain's position. She supports off-shore drilling, with appropriate environmental safeguards, as we encourage the development of alternative energy sources.

That's McCain's position! Secret message of the ad: The smart position is McCain's position and not Obama's.

Now, you might want to say that all that funny stuff at the beginning about McCain's age is anti-McCain. No, it's not! It's McCain's position. McCain is constantly making jokes about how old he is. How many times has he said "I'm older than dirt and more scarred than Frankenstein"?

Finally, Hilton is giving the "biggest celebrity" ad another big boost. That ad has already worked, but it was coming to the end of it's life cycle. Hilton jolted it back alive.



FROM THE COMMENTS (that predate my explanation): Ben (The Tiger) said:

How is it pro-McCain?

1. Well... there's no hint of pulling back from her lifestyle. Looking to where she can fly next is not unlike McCain's call for the sound of fifty thousand Harleys.

2. Her position is very much like McCain's -- drill, but not everywhere. (I'd prefer more drilling.)

3. If she really wanted to skewer McCain, she'd do more than make fun of his age in a way that he did himself on SNL.

4. Obama not seriously engaged.

5. Again, she's not backing down from the American life of excess. There will be no scolding of people's life choices. That doesn't fit with the environmentalist movement.

6. She left the door totally open for the McCain riposte -- "Paris Hilton supports drilling! Paris Hilton has a better energy policy than Barack Obama!"

***

So the ad's objectively pro-McCain.

Was it intentionally pro-McCain?

I suspect so -- I don't think she's dumb.

But then, I'm prejudiced -- I'm a McCain fan.

Beldar said:

I don't think the ad's intentions, other than furthering the popularity ambitions of Ms. Hilton, are at all clear.

Because I already had a view of Obama as (mostly) humorless and of McCain as being willing to poke fun at himself ("older than dirt"), I was inclined to take her comments about the "really old guy" as fond teasing. But honestly, that's me projecting sly wit onto Ms. Hilton that I'm not at all sure she intended.

The ad does McCain palpable damage by its strong suggestion that he opposes conservation. He doesn't. As others have pointed out, what she describes as the "Paris Hilton position" is in fact essentially the McCain position (a combination of prudent development and conservation). In fairness, the McCain campaign itself has muddied these waters by choosing to lampoon Obama for suggesting that people check their tire pressure, which in fact is a perfectly good conservation suggestion, albeit wholly inadequate by itself.

I'm not at all sure why, Prof. A, you think this video cuts so unequivocally in McCain's favor. I think you may be crediting the "average" viewer, or at least large numbers of viewers, with more subtlety and discrimination than they in fact possess, but I eagerly await your promised explanation.

Ben (The Tiger) responds:

I want to see Althouse's explanation, but I think it's telling that almost all the right-wingers whose reactions I've read think that the spot was charming, whatever else they've thought about Paris Hilton in the past. (And I do, too.)

Yeah, and Beldar, the unclarity of Hilton's position is what makes it effective. An openly pro-McCain ad would not be effective. Her above-party-politics pose is .... hot.

Greg Toombs said...

The ad is 90% about McCain (when it's not about Paris) and 10% the 'other guy'/Barack.

Specific McMentions:

1) He's the oldest celebrity in the world
2) like super old
3) dancing a sin & beer in a bucket examples
4) is McCain ready to lead
5) wrinkly, white-haired guy
6) thanks, white-haired dude
7) Paris' energy plan endorses McCain's drilling plus his $300 million battery prize
8) three McCain pictures - none of Barack

It's all about McCain.

When it's not about Paris.

J Lee said:

What makes the ad pro-McCain in large part isn't just what it says, but the McCain camp's reaction to the ad.

Watching how the morning network news shows tried to play it today, the spin was "Paris Hilton strikes back at McCain ad", which is where it would have stayed if they had their way. Unfortunately, they were forced to also cover the McCain camp's reply that credited Ms. Hilton with having a better energy policy than Barack Obama. Had the McCain camp responded with the same sort of humorless "whatever" remark the Obama people did, it would have freed up the big media folks to paint this exclusively as a slap-down of Maverick and his original ad.

Now, here's something different, and very smart, from LB-Philadelphia PA (who has only commented once before, back last year):

Has anyone else picked up on the subliminal racism of the "best tan" comment? I mean, Obama is seriously tanned and he's from Hawaii. It's code, I tell you, code!

Interesting, but is that pro- or anti-Obama point?

"Sarah Palin is walking, talking, governing proof that feminism, motherhood, and conservatism aren't inconsistent."

Beldar loves (potential VP pick) Sarah Palin.

***

IN THE COMMENTS: Ted says:

Q&A How can McCain SIMULTANEOUSLY attract both Hillary AND Bob Barr voters?

Answer: PALIN Veep!”

Are you watching HBO's "John Adams"?

Beldar is:

He's shown as a gentleman farmer who can relish teaching young John Quincy the utter necessity and joy of going elbow-deep while hand-mixing the contents of the manure-cart, and yet who immediately thereafter, upon hearing the boy's stated desire to become a farmer, firmly announces that it's to be the schoolbooks and "then the law" for the lad. (Some of you will see this — manure-spreading and lawyering — as entirely uncontradictory, just not in the same way Adams himself would have.)

It's a long slog through these episodes, even as the big events of American history pop up with regularity. Just when you think it's dull — let's palpate poop and pontificate — suddenly there's a famous battle right at their doorstep. Or there's John (Paul Giamatti) hunched over his extremely slow-walking horse, and around the next corner is the Boston Massacre. Watch men sweat and bore each other with tedious orations in the candlelight and — hold on — they'll get around to signing the Declaration of Independence. Then HBO will require you to gaze into the earnest, profound, somber visage of Paul Giamatti for several minutes to make sure you don't forget to think, think, think about what it all means. So it is overbearingly serious, but I can take it. If those little kids could put up with having the juice of a dying man's smallpox pustule jabbed into their arms, I can put up with the televised longueurs. Good will come of all this, one hopes.

Maybe you read David McCullough's book. I did not. I subjected myself to his "Truman," and I did not want to read another tome stuffed with way too many pages depicting what a good relationship some great man had with his wife. (Are McCullough's books the opiate of the married?) But I trust HBO, so I'm watching the mini-series. Still, every time I see tableaux of Paul Giamatti and Laura Linney (John and Abigail) smiling wanly, heads tilted together, fingers entwined — there are many! — I confirm my decision to skip that book. (But the Anchoress loved it.)

Let's look for commentary.

Lawprof Rick Garnett:

There were more than enough stirring "rule of law" and "importance of zealous counsel for the accused" moments [in episode 1] to justify recommending the episode to first-year law students. The episode ended with a dramatic speech on "liberty" by Adams (in a church), and with his departure for (I gather) the First Continental Congress. So far, the show seems to be doing a good job of highlighting Adams's struggle to keep-in-balance his "conservative" (that is, his unease-with-revolution) instincts with his "liberty" commitments.

Garnett seems intent on staying in character as a "prawfsblawger." (He's a law professor and he blogs about law — even if he's watching television.)

Paul Silver "swelled with pride and awe at the courage, tenacity, inspiration and skill of our founding parents." Is it okay for us to feel pride at what they did? I kept thinking that we never go to such trouble for anything today. I was feeling more ashamed, thinking I — and maybe everyone I know — would be on the side of the argument that said the war was a foolish risk and we need to bear with things a lot longer and hope for the best from the king. (By the way, didn't you think of Jeremiah Wright when someone said "God save the King" and one of the patriots responded "God damn the King"?)

The Television Without Pity discussion is good and irreverent, as usual:

Mmm, juicy pustules! (Imagine convincing people it was a good thing--especially when they were barely past believing in witchcraft.) I found it pretty dry, and I admit I was doing the Sunday bill-paying, work prep routine so wasn't wholly focused. But Tom Wilkinson was wonderful (although seemed tall for Ben Franklin, I don't know why). The Declaration reading sequence was pretty darn great, realistic or not, though. Sad but not surprising that the founding of Our Great Republic was so beset with bureaucracy and tit-for-tat....

[Tom] Wilkinson was rather good - I was worried about the scenery chewing, but then [Ben] Franklin was probably a smart alecky scenery chewer in real life so the acting fits. I'm neither here nor there on the fake nose, but [David] Morse [as George Washington] is doing rather well also.... One of my favorite scenes was after the vote to declare independence with the room so quiet - the collective thought of "what the hell did we just do? Yeah we really are doing this" just hanging in the air.

Ha ha. Well put. TWoP is such a refreshing read. There really is way too much pity everywhere else.

Oh, I forgot to check mainstream media. Well, here's Tom Shales for the Washington Post

Dramatizing America's colonial and revolutionary years is full of pitfalls and has resulted in many a leaden movie -- from the cartoon buffoons of the musical "1776" to the British-as-mad-fiends hysteria of Mel Gibson's imbecilic "The Patriot." Mythic historical figures can come across as strutting, one-dimensional impersonations. But shrewdly adapting a book by the dedicated David McCullough, writer Kirk Ellis and director Tom Hooper have created characters who live and breathe and also, on occasion, bleed. They talk in complete sentences -- a charming habit long since abandoned here in the Colonies -- and yet the dialogue never seems stiff and unwieldy, as often happens in historical productions.

And here's Alessandra Stanley for the NYT:

[I]n this historical drama, Mr. Giamatti is a prisoner of a limited range and rubbery, cuddly looks — in 18th-century britches and wigs, he looks like Shrek.

And that leaves the mini-series with a gaping hole at its center. What should be an exhilarating, absorbing ride across history alongside one of the least understood and most intriguing leaders of the American Revolution is instead a struggle....

This series has a “Masterpiece Theater” gravity and takes a more somber, detailed and sepia-tinted look at the dawn of American democracy. It gives viewers a vivid sense of the isolation and physical hardships of the period, as well as the mores, but it does not offer significantly different or deeper insights into the personalities of the men — and at least one woman — who worked so hard for liberty.

Supreme Court cartoon robots with flashing eyes.

Beldar slams the big NYT Magazine piece about Justice Stevens, written by Jeffrey Rosen. (All the Supreme Court psychodramatists are named Jeffrey.)

Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.

As Beldar notes, the kind of people who make it all the way to the Supreme Court are -- of necessity -- extraordinarily mature and highly self-regulated. So why do they come across as such hyper-dramatic characters in popular journalism?

Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Wow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.

Yeah, eyes don't actually flash... and it would be spooky as hell if they did. Nor do eyebrows dance (as Jeffrey Toobin perceives looking at Justice Scalia).

And even if eyes flashed and eyebrows danced, it wouldn't necessarily signify what the Jeffreys tell you it signifies.

Ironically attacking his own reputation, Dan Rather sues CBS for ruining his reputation.

What a mind-boggling legal theory! Dan Rather's reputation had to do with the appearance that he was vouching for the stories he read on the air, that he was taking personal responsibility for their truth. He's suing CBS for allowing him to report a phony story:

By his own rendering, Mr. Rather was little more than a narrator of the disputed broadcast, which was shown on Sept. 8, 2004, on the midweek edition of “60 Minutes” and which purported to offer new evidence of preferential treatment given to Mr. Bush when he was a lieutenant in the Air National Guard.

Instead of directly vetting the script he would read for the Guard segment, Mr. Rather says, he acceded to pressure from Mr. Heyward to focus instead on his reporting from Florida on Hurricane Frances, and on Bill Clinton’s heart surgery.

Mr. Rather says in the filing that he allowed himself to be reduced to little more than a patsy in the furor that followed, after CBS concluded that the report had been based on documents that could not be authenticated.

So, his own actions, as he describes them, warrant the diminishment of his reputation. In which case, in asserting the basis for his lawsuit, he's diminishing his own reputation. Why then is he filing the lawsuit? You may say: for $70 million. But he has to win the lawsuit to get the money. And he has to pay his lawyers out of that recovery. Very expensive lawyers, too. Sullivan & Cromwell. (I used to work there.) And he's already dumped a lot of his own money into investigating the matter.

So, if it's not about getting money, what's it about? Well, there's this:

“I’d like to know what really happened,” he said, his eyes red and watering. “Let’s get under oath. Let’s get e-mails. Let’s get who said what to whom, when and for what purpose.”

Who, what, when, and why... I get it. It's like reporting. Except you use the judicial process to force people to talk to you and produce documents.

(Hilarious photograph at the link.)

ADDED: A lawyer from Sullivan & Cromwell is quoted in the linked article, but that firm doesn't represent Rather. His lawyers are Sonnenshein Nath & Rosenthal, and here's the complaint -- courtesy of Beldar, who's writing about that case. On one point, he says:

.... I'm sorry, but that's so badly wrong as a matter of law that every one of the Sonnenschien lawyers whose name appears on this complaint ought to be sanctioned for making it...

Also:

[I]fCBS has the guts to fight it — and that is an open question — CBS will win it. You can bet the ranch on it.

"Shouldn't we stick up for the poor guy? I can't believe it's a crime to tap your foot on the bathroom to signal that you want to hook up..."

Writes Jacob Weisberg, in a debate among Slate editors about how to handle the Larry Craig story. More:

David Plotz: I understand why they want to stop a bathroom from becoming a den of blowjobs, but this seems pathetic. Also—there is little deterrent effect in doing this generally. It is an airport, so by definition it caters to people in transit, who aren't going to know that it has become a police target.

John Dickerson: Seems to me you should have to go a bit beyond tapping your toes.

Jack Shafer: He pleaded guilty to lewd conduct.

He also stared through the crack into the stall.

Plotz: Jack, for a libertarian such as yourself to say that a guilty plea is the last word is crazy.... He is guilty—but of a fake crime. The fact of the guilty plea does not somehow end discussion. He pleaded guilty because he was scared and embarrassed about the public revelation. The problem—my libertarian friend—is that the government has put on its books a law that serves very little public purpose, and has given the police free rein to enforce it with heavy hands (and tapping feet). You should be objecting to the excessive power of the state being harnessed to create and enforce laws that serve so little purpose.

Plotz raises some good points, but he's missing the peeping aspect of the crime. You can see that "peeping" was one of the crimes charged. That is clearly defined and a proper offense. The other offense is charged was "disorderly conduct":

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:...

Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Maybe there are some problems here. Did he have "reasonable grounds to know" that what he was doing would "alarm, anger or disturb" the police officer? I think only the initial peeping was a problem. A person who was not interested in sex should object to the first peep. It seems Craig made a series of subtle gestures and the officer let him go on. That would cause a reasonable person to think that he wasn't upsetting anyone but that his advances were wanted.

Dale Carpenter says:

Disorderly conduct is a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others....

At most, Craig was implicitly inviting another adult to engage in some kind of sexual behavior in a public place. I'm not a Minnesota criminal lawyer, but I don't think asking a stranger for sex in a public place, while vulgar and rude under many circumstances, would by itself be a crime under state law. At any rate, Craig wasn't charged with that.

What really seems to have happened is that the airport police had received complaints about sexual activity and were acting over-zealously to deter it, regardless of the niceties of state criminal law. Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed. When newspapers print their names, as they often do, the consequences can be devastating. Like them, Craig probably wanted to avoid publicity and pleaded guilty to "disorderly conduct" in a futile effort to save his reputation and his job. Whatever we think of Craig's views on gay rights, or of the cosmic justice in this particular Senator being ensnared in these particular circumstances, it's difficult to see how he's a criminal.

But how can you disregard the peeping charge? Here's the statute:

(c) A person is guilty of a gross misdemeanor who:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and

(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

Isn't this statute the basis for the strategy of having the police officer to wait inside the stall? And why isn't this an acceptable police practice to deal with the problem of a public bathroom that is used for sexual activity?

Captain Ed notes that Craig only pled guilty to the disorderly conduct charge. But I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge. Captain Ed sees a way to defend against that charge: Craig was three feet away from the door and perhaps the police officer looked at him first. But he didn't choose to fight the charges. I'm not an expert on criminal law, and I would like to hear more discussion of how a good lawyer would have resolved the case for him. Isn't what he chose to do the most sensible path? And if the man is competent to be a Senator, shouldn't we assume that he looked at his options and chose what was in his best interests?

Whether Craig is gay or not is irrelevant, but I should note that Craig has made a point of telling the world he's not gay.

ADDED: I said above: "I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge." Beldar agrees and amplifies:

Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction. Yes, disorderly conduct is a broad and vague charge — one that doesn't much seem to fit the facts alleged. But it's entirely possible that it was charged in the first place as an obvious, attractive basis for compromise, i.e., a charge with at least some factual correspondence to what happened, and upon which a more attractive plea could therefore be negotiated (especially for someone with no criminal record or other indications of dangerousness)....

[T]his plea, like countless others every day, aptly reflect[s] the litigants' well-informed judgments as to their respective risks and benefits from going to trial....

That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct, conclusively and irrebuttably, under the Rule of Law as it speaks for our society. Whether he mighta, could, shoulda won if he'd fought all the way through is irrelevant, and it's unproductive to even speculate about. He has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room. That argument insults the listener (us) and only further degrades the maker (him); it is the argument of a scoundrel who thinks he's arguing to fools.

I think that last paragraph is too broadly stated, but in this case, Craig needs to find a better way to deal with his predicament.

By the say, Senator McCain has called on Craig to resign.

"Obama knew he should vote for Roberts' confirmation, but voted against for purely political reasons."

Beldar reads the Washington Post and paraphrases.

Elsewhere on BeldarBlog -- where baiting Senators is a way of life -- Beldar is begging Senator Kerry to sue him:

I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

I love the part about diversity jurisdiction. We need more blogging about jurisdiction....

"Look, I'm renowned not only in the U.S. but across the world for my capacity to be vengeful, aggressive, brutal, and ruthless..."

"... and I'm already about ten times as intimidating to any foreign despot as John Edwards could be even if he shaved his head and got some tattoos."

What Hillary could've said when that guy asked her how she's going to get taken seriously by the "Arab states, Muslim nations" where they see women as "second-class citizens." According to Beldar, anyway -- who thinks ¶ 19 of my debate blogging is too accepting of what was an "incredibly" and "amazingly" "lame" response:

Starting with a reference to visits she made as First Lady is, I am convinced, a careless use of that double-edged sword. None of those visits she made as First Lady were anything more than ceremonial....

If one is going to cite examples of notable national leaders who were effective notwithstanding their lack of a Y-chromosome, then then screamingly obvious example is former British Prime Minister Margaret ("The Iron Lady") Thatcher, followed (equally obviously) by Golda Meir and Indira Gandhi. Babbling about little-known women heads of state from Germany, Chile, or Liberia — Liberia?!? — cuts against her case, since none of those countries, whether headed by a male or a female, is going to be perceived by American voters as having a role remotely comparable to that of the United States in world affairs.

Looking at the transcript, I see what he's talking about. And I can see that my comment is very much a representation of how what she said merged with my own thinking on the subject. The key problem that I ignored wasn't the First Lady business, but her failure to address in any way the problem of the way Muslim countries treat women. She acted as though the question was just: Can a woman be President?

This was a question that begged for a thoughtful, articulate statement of principles. There are so many things she could have said about how we must not abandon our values just to gratify those cultures and countries who don't yet embrace sexual equality. This question was a medium-speed fastball right over the center of the plate — and she laid down a not-so-good bunt with it.

Maybe Elizabeth Edwards is right about Hillary: She really doesn't have the best feminist instincts.

Reading the school integration case.

I've put off writing about the school integration cases that came out on Thursday, in part because I was writing under the pressure of deadlines on both Thursday and Friday, but also because I genuinely wanted to read the opinions and was not eager to express an instant opinion either to condemn or to praise what the Court did.

Back when cert. was granted, I called attention to the idea of deferring to local educational policymakers, which the Court did in Grutter, the University of Michigan Law School case where the Court approved of the use of race as a factor when the goal is classroom diversity.

So if I had one predisposition, it was that I hate to see community resources absorbed in litigation, and I would prefer to leave the results of local decisionmaking in place. That is, I find federalism and judicial restraint appealing. But, of course, I have a second predisposition: I want integration to succeed, and I hate to see a Supreme Court case that people will read as hostile to it.

I know the Court writes on top a large pile of difficult precedent, and I'm not going to use this blog post to try to sort through all of that and make a pronouncement about which opinion did the best job of sorting through it.

I will simply quote the passage that I found most persuasive, from Justice Breyer's dissenting opinion:

What has happened to ... respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.

These are values of federalism and judicial restraint, conservative values, which are especially worthy of respect when they they are not used to preserve or drag us back to our racist past.

IN THE COMMENTS: Many of my readers object to what I've said here, and I will respond to a few of them. Seven Machos writes:

I really don't understand your argument at all, Althouse. The Topeka Board of Education did plenty of local decisionmaking. The Court stepped in and said that certain decisions cannot be made. What's the difference here. You can argue with the policy issues, but you can't make a federalism argument here. The federal government can either... prevent unconstitutional practices or it can't.

You're assuming the practice in question is unconstitutional. That is the matter to be decided in the case. Justice Breyer is not saying what happened here is unconstitutional, but I can't (or won't) do anything about it. For him, considerations of federalism and judicial restraint affect the analysis of whether there is a right. Taking these and other concerns into account, he finds no right violated in this case. Brown v. Board of Education involved a very different set of facts. The Court has a difficult task in defining the scope of Equal Protection, it is not obvious where to draw the line, and it is appropriate for the Court to be aware that once it says that a right exists it is denying people the freedom to make choices in a democratic fashion and that it is diverting their time and money into litigation.

Beldar writes:

"What has happened to ... respect for democratic local decisionmaking by States and school boards?"

This was, of course, the exact argument used to justify racial segregation whose purpose was to benefit whites and harm blacks.

Chief Justice Roberts has it exactly right, and it's so profoundly simple that even a lawyer like me or a con law professor like you ought to get it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

You are asserting that the simplest formulation of legal doctrine must be the correct one and implying that anyone who disagrees with that assertion is failing to understand something simple (and is, presumably, either an idiot or is playing dumb). In your view of the law, there can be no subtlety, no careful weighing? Are you willing to apply that proposition across the whole range of legal issues? Think it through. If courts could only proceed in that fashion, I think we would end up with fewer, not more rights.

From the other side, AJD said:

Oh, come on. Nothing about the man you've fawned over all year? The smiling C.J who is harkening us back to that racist past.

But weren't his prose great! Don't you love his sentences!!

There are limits to how long a blog post can be and I chose not to parse through all the opinions in this case, but in fact I don't think there is anything racist about the Chief Justice's opinion. He drew the line and defined the right in the way he saw fit, and he wrote a solid opinion explaining the decision. What I wrote in this post does not imply that he is taking us back to our racist past, only that he could have given more deference to the choice of a local majority because that democratic choice was not infected by racial animus.

And my support for the Roberts nomination had nothing to do with his good looks but with his learning and his powers of analysis. In fact, clear, elegant writing is a sign of the clear, strong thinking we want in a judge. And judges need to prove to us in writing that they are doing their job properly. Unlike you, I am able to respect and appreciate the work of judges who come to conclusions that I myself would not reach.

Are real-life lawyers starting to think they can act like those lawyers on TV?

Yesterday we were talking about that lawyer who told a judge she was "a few French Fries short of a Happy Meal." Beldar wonders if television has warped their minds. Beldar says he's been a big fan of the lawyer show "for a long, long time, all the way back to Perry Mason days," but you've got to realize these shows are fiction and that they've got to concoct endless dramatic spectacles. How incompetent to lose your bearings and think that because these TV lawyers mouth off to the judge and suffer no serious sanctions that you can too!

Me, I don't watch the TV lawyer shows. I didn't watch "Perry Mason" back in the 60s, and aside from a couple of episodes of "L.A. Law" -- enough to see I didn't like it -- haven't watched any in the last 30 years. I accept that the shows exaggerate and overdramatize to entertain people, but it just doesn't work on me.

But there was once a TV show about lawyers that I loved: "The Defenders."

The series concerned the cases of a father-and-son team of defense attorneys, Lawrence Preston (E.G. Marshall), the sharp veteran litigator, and his green and idealistic son Kenneth (Robert Reed)....

As Rose pointed out a 1964 article, "the law is the subject of our programs: not crime, not mystery, not the courtroom for its own sake. We were never interested in producing a 'who-done-it' which simply happened to be resolved each week in a flashy courtroom battle of wits." Rose undoubtedly had in mind CBS's other celebrated defense attorney Perry Mason (1957-66) when he wrote these words. Although both were nominally "courtroom dramas" or "lawyer shows," Perry Mason was first and foremost a classical detective story whose climax played out in the courtroom, while The Defenders focused on the machinery of the law, the vagaries of the legal process, and system's capacity for justice. Although the Prestons took on their share of murder cases, their aim in such instances was to mount a sound defense or plead for mercy, not unmask the real killer on the witness stand.

Certainly The Defenders exploited the inherent drama of the courtroom, but it did so by mining the complexity of the law, its moral and ethical implications, and its human dimensions. Rose and his writers found much compelling drama in probing the psychology of juries, the motives of clients, the biases of opposing counsel, the flaws of the system itself, and the fallibility of their own lawyer-heroes. The series frequently took a topical perspective on the American justice system, honing in on timely or controversial legal questions: capital punishment, "no-knock" search laws, custody rights of adoptive parents, the insanity defense, the "poisoned fruit doctrine" (admissibility of illegally obtained evidence), as well as immigration quotas and Cold War visa restrictions. The Defenders avoided simple stances on such cases, instead illuminating ambiguities and opposing perspectives, and stressing the uncertain and fleeting nature of justice before the law.

Can we get a show like that now?

"Why and when did you decide, f*ck that, I'm coming out swinging?"

Amba asks why, so soon after putting an asterisk in "f*ck," I did a post that consisted of calling someone a dick. Good question, and my first answer to it is inadequate, as I noticed this morning. So I reanswered, and I'm elevating the answer to a post, partly so Amba will see it but also to set up a new conversation about how we should be speaking to each other.

I make a special case out of the word "f*ck" because of filters. They can't filter "dick." It's a name. My own father's name was Dick. I have yet to meet anyone named F*ck.

But there's the question, why did I do a post like this, just calling the guy a dick? I don't usually post like that or talk like that about someone. It's like the old "nerd wants love" post. I do it occasionally, when linking to someone who's being rotten to me. (I normally just don't link to such thing[s].) A short post requires you to go over and read it. He gets traffic. He's not particularly hurt by it, actually. He has his point and you have to read it. You might think he's right. Personally, I think he's so clearly wrong that just reading his post will get you where I would otherwise have to persuade you to go.

Plus, I operate on whim and intuition here. And the guy's name is Quick. It rhymes with dick and calling him a dick is quick.

And I did just approve of John McCain saying "f*ck you" and "chickenshit." Maybe McCain emboldened me. Which might be a reason to disapprove of him. He's setting an example and, being a leader, he gets followers.

Now, I was criticized for saying "I want a President who says 'f*ck you' and calls things that are chickenshit 'chickenshit.'" Notably, Beldar wrote: 'I do not want an American president who cannot restrain himself from shouting 'F*** you!' at his peers." But I don't know that McCain couldn't restrain himself. I wasn't there. I didn't hear the context. I assume Senators say harsh things to each other behind closed doors, but I don't have a feeling for what the norm is. My approval is at the abstract level. I am not expressing an opinion about whether the things McCain called "chickenshit" really were chickenshit. And Senator Cornyn possibly didn't deserve a "f*ck you" on that occasion.

What I didn't like was that people who oppose McCain on the immigration bill chose to quote him to the press and that the press reported it. They were trying to use American sensitivity to language to shape opinion about the immigration bill. But your view of the immigration bill shouldn't depend on whether one of its supporters expresses himself in ruder language than you like. I'm sure you know that, but it was an attempt to manipulate you subliminally, and I meant to call them on it. It was also an attempt to wreck McCain's presidential candidacy, something plenty of people have a motivation to do.

I wrote my post saying "it's nothing" not because I tolerate uncontrolled anger -- though I probably accept (and engage in) more passionate expression than most people do. I wrote it because I thought I detected an underhanded political move. Who decided on this occasion to tattle on a few of the words that were spoken at a closed-door meeting? Why did they do it? You can't be naïve enough to think that it was someone who just loves a mutually respectful deliberative environment.

ADDED: And here's Amba's response to this post:

I wondered if it was McCain's influence, or just the toughening effect of the gratuitous vileness Ann's been subjected to, or even, on some level, an angry swiping-away of the stereotype of the delicate-sensibilitied female or feminist blogger. Tearing down the goddamned lace curtains....

[The blogosphere] is what we make it, and there's an interesting tension between the desire for courtesy and the dislike of bullshit. Real civilized discourse holds that tension instead of collapsing it one way or the other -- into potty-mouthed ranting or prissy political correctness of either persuasion -- and it strikes me that it has a lot to do with gender, and the homage paid each to the traditional sensibilities of the other by tough women and courteous men.

Arlen Specter makes up the term "superprecedent" — Part 2.

Here's Part 1. And Beldar is re-skewering him for it.

Here's the WaPo story quoting Specter.

Arlen Specter makes up the term "superprecedent" ...

And uses it in a NYT op-ed to hint that Judge Roberts might need to reveal whether he would overrule Roe v. Wade. Beldar skewers him as thoroughly and painfully as can be done in this age of Google and Westlaw.

So what's worse: Specter making up a term and claiming "legal scholars" use it? Or Specter being dumb enough not to realize there's a such thing as computer research and that scores of lawyers and lawprofs are monitoring the nomination process and blogging about it?

IN THE COMMENTS: A commenter brings up a 1976 use of the term in a law review article, and I respond, noting that old usage -- which I don't remember ever seeing -- was not anything close to what Specter is using it for.

MORE: Redstate notes a Court of Appeals decision by Judge Luttig that uses the term "super-stare decisis" to refer to Casey:

I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. See Casey, 505 U.S. at 844-46 ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973), that definition of liberty is still questioned. . . . After considering the funda-mental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, 2000 WL 825889, at *4 (June 28, 2000) ("[T]his Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992). We shall not revisit those legal principles.").

There's something to this. Let's see if this notion is used to require Roberts to commit to leaving Roe alone.

AND: Luttig's use of the term "super-stare decisis" is unique in the case law, but I did find three uses of the term in the law review file on LEXIS, including one referring to Casey, written by Lawprof Earl Maltz. All three use the term only in the context of being critical that a precedent is regarded as especially invulnerable. Here's Maltz:

The theoretical problems with the Court's opinion [in Casey] are even more troubling. The implications of the argument are breathtaking. The analysis reverses the accepted view that interventionist constitutional decisions should be granted less protection under the doctrine of stare decisis because they cannot be corrected by other branches of government. In essence, the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position, but also have that position protected from later judicial action by a kind of super-stare decisis.

The article is Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey, 68 Notre Dame L. Rev. 11 (1992).

And let's be clear that Luttig's use of the term "super-stare decisis" is also critical of the idea. Even if we translate Spector's "superprecedent" to "super-stare decisis," there's still no accepted legal concept here. Yet, clearly, it is well-understood that the Casey Court purported to make a final decision about the permanence of abortion rights.

Stirring up hatred against judges.

People have been complaining about "activist" judges for years. But here's a Washington Post report on a Senate speech by Senator John Cornyn that speculates that judicial activism might cause violence:

"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."

The article connects that remark (which seems to be a rather idiotic sort of talking off the top or your head) with Representative Tom DeLay's recent comment:

"The time will come for the men responsible for this to answer for their behavior."

DeLay was grousing about the judges in the Schiavo case; Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18.

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.

UPDATE: First, thanks to Glenn Reynolds for linking. ("I agree with Ann Althouse.") Second, before you reflexively email me in defense of Cornyn, read what I've written. Don't tell me to pay more attention to specifics of what he said without paying attention to the specifics of what I've said. And you needn't inform me that he was a state supreme court justice. That fact is in the Washington Post article, which I obviously read. And I'm also perfectly aware that he's structured his remarks to preserve deniability. He doesn't openly encourage violence, and I didn't say that he did. He's legitimating hostility toward judges, however, and portraying the judges as out-of-control power-wielders. And he's expressing understanding for people who snap and express hostility with violence. That is going too far. My conclusion above is: for a public figure even to hint at violence as a solution is completely unacceptable. I stand by that. Cornyn should know better and behave more responsibly. There are unbalanced people out there who take things the wrong way, and judges -- especially trial judges -- are on the front lines, dealing with dangerous people and often frustrating them.

ANOTHER UPDATE: Beldar urges me to read the whole text of the Cornyn speech and also writes that Cornyn, as a former judge, has a better understanding of how judges decide cases than I do. First, when I wrote "It is really a shame how little people understand of the reasons judges decide cases the way they do," I was referring to the reasons given in written opinions, which I've been reading for a quarter of a century. I have a complaint with people in the political sphere, as Cornyn is today, who score political points portraying judges as illegitimate. Almost no one in politics and media tries to explain the reasons given in writing for a decision, which is the judge's own defense of his exercise of power. The judge can't go on TV and explain that reason to you. You're supposed to read it. But you probably won't. You'll probably just listen to someone tell you what the judge did, but nearly everyone offering up that information has an angle. These people are spinners and self-promoters of one kind or another.

Now, I've read the whole text of the speech, which is mostly justifying his bill to bar courts from citing foreign law. It's full of boilerplate about how much he respects judges, but it also excoriates Justice Kennedy for referring to foreign law in Roper v. Simmons to determine that it is "cruel and unusual" punishment to execute a person for a crime he committed when he was less than 18 years old. I don't think the whole context changes things very much. Politicians know the spiciest part of a speech is the sound bite. Edit it out if you don't mean it.

YET ANOTHER UPDATE: This post has gotten a lot of attention. (One post that receives two Instapundit links and two Powerline links on the same day? That's some sort of record.) I stand by the precise statements I made, and I call them as I see them. I'm not into backing the Senator or being part of a weird swarm trying to make trouble for the Senator. I see Atrios is writing "this really is a resignation causing statement," and that goes too far. Cornyn should not have said what he said, and he's groveled, so I'd let it go for now. But I note that his new statement has this:

Our judiciary must not be politicized. Rhetoric about the judiciary and about judicial nominees must be toned down.

I'll hold him to that and keep an eye on what he does next. It seems to me that with his bill about judges citing foreign law, he's deeply involved in advancing his career by overstating problems with the judiciary.

Former prosecutor: an impressive credential for Kerry?

Beldar has a nice post analyzing the limitations of John Kerry's credentials as a former prosecutor. ("He's always been a prominent member of the subspecies Lawyerus Politico.") I wonder how much people really are thinking of voting for him on the basis of that short period of his life? I suppose that "former prosecutor" image is used like "Vietnam veteran" to make people think he's tough in some areas where people tend to think Democrats are soft.

Unlike Beldar, I don't care at all that Kerry hasn't kept his legal license current. He's not a practicing lawyer anymore, but he's entitled to rely on his earlier experiences as he runs for office. A Senator doesn't need to have an active legal license. I'm a lawprof, and I don't keep my membership in the New York bar active, because I don't practice law. The only possible problem with retiring from the practice of law is the implicit statement that you plan never to return to practice. An elected official might want to disguise the fact that he sees himself as a career office-holder.

The main problem I have with Kerry going on about his prosecutor days (and his Vietnam experience) is that it means he isn't resting on his more recent and relevant experience as a Senator. Other than the talk of his votes about the war, I've heard almost nothing about his accomplishments in the Senate. You'd think the Senate is just a holding chamber for presidential candidates--which is especially pathetic considering that it's been 44 years since a Senator won the presidency.

Should John Kerry sue the Swift Boat Veterans for Truth?

Kenneth Baer, a former senior speechwriter to Vice President Al Gore, writes in TNR Online that John Kerry should sue the Swift Boat Veterans for Truth. When I saw the suggestion, four reasons not to sue sprang to mind immediately. Baer, I was interested to see, deals with all of them. Here are the four reasons:

1. Kerry is a public figure, so under New York Times v. Sullivan, he would need to prove that the SBVT knew the libelous statements were false and proceeded with "reckless disregard." Here, Baer asserts that we already know that there are falsehoods. I'll set out Baer's points in some detail, with my comments in bracketed italics:

One member of the group has already called his participation in the ad a "terrible mistake;" that same veteran and another one in the ad actually defended Kerry from similar charges in his 1996 Senate race; another gave Kerry exemplary ratings as an officer; and none of them have ever initiated official proceedings to challenge the Navy's decision to award Kerry these medals. ...

[One could believe the facts in the ad and still regret making it. And one might easily choose to defend a candidate whose politics you like from an attack based on true assertions. Of course, Kerry knows whether they are telling the truth. We don't.]

Medical Officer Lewis Letson states that: "I know John Kerry is lying about his first Purple Heart because I treated him for that injury." Letson offers no proof for his assertion, just details about the dates and places surrounding the injury that are readily available. More damning is that according to official Navy records, Kerry was treated by another medical officer; Letson was not the medical professional who signed Kerry's "sick call sheet."

[The potentially libelous statement is that Kerry is lying about his first Purple Heart. We don't know whether that statement is true or false. But if it's true that Kerry is lying about that, then there is no libel, even if Letson didn't treat Kerry and knowingly lied when he claimed to have treated Kerry. You might have actual malice about that statement, but the problem is that Kerry isn't injured or brought into contempt by the statement that a particular person treated him. It's just not libelous. It would not be enough to prove that Letson was lying about treating Kerry. Letson could still defend by showing that Kerry was lying about his first Purple Heart.]

Gunner's Mate Van O'Dell says that: "John Kerry lied to get his Bronze Star. I know, I was there, I saw what happened." O'Dell did not serve on Kerry's boat, but was on another boat in his division. O'Dell claims to have witnessed the entire incident in which Kerry won his Bronze Star. Yet, his account does not show up in any official Naval documents--from the spot reports filed immediately after the incident that detail damage to two boats, including Kerry's, and Kerry's injury report to the eyewitness accounts of Jim Rassmann, the man who Kerry pulled out of the river. Either O'Dell is right, and Rassmann, Kerry, and the US Navy are wrong--or O'Dell has a big legal problem on his hands.

[Same problem! Let's assume that O'Dell did not personally see what happened and he's knowingly lying about that. How is that statement libelous? O'Dell's seeing or not seeing the incident is not a matter that harms Kerry. It is only the fact asserted about what Kerry did that hurts Kerry's reputation and is thus capable of being libelous. If O'Dell is repeating something he heard someone else describe, and he thinks it's true, it might be that the New York Times standard is not met. But surely, if O'Dell can prove that the Bronze Star incident really is as O'Dell describes, he will have established the truth defense with respect to the statement that harms Kerry's reputation.]

2. Kerry will look litigious, a negative quality which will be exacerbated by the fact that he has a trial lawyer as a running mate. Baer concedes this is a "risk," but opines that it's a risk worth taking.

3. The election will be over by the time the case gets anywhere near a judgment. Here, Baer thinks it's worth it anyway in order to "send a message that there will be serious repercussions for anyone who wants to fund or appear in an ad that is patently false." That's the usual upside of litigiousness. Demonstrating your willingness to sue is intimidating. It even intimidates people who are telling the truth. I think in a political campaign, voters want to see issues addressed in public debate that takes place before the election, not squirreled away in a long court proceeding where the truth is learned too late to help them decide how to vote.

4. Kerry will be subjected to discovery requirements, with the court likely to require him to produce all sorts of records of his military service, including his medical records, which he has not thus far been inclined to release. Baer is thinking of discovery from another angle:

Discovery procedures could lift the curtain of anonymity on those funding these ads, potentially compelling them to disclose their financial and political interests and connections. In addition, a lawsuit will have an equally chilling effect on the political consultants who make these ads. Even the largest political ad-makers can't afford costly litigation; from a financial perspective, getting involved with groups like SBVT would be too big a risk no matter a consultant's politics.

Well, that's just admitting that you're using discovery for a purpose other than getting proof of the issues in the case. In other words, you want to abuse the process of discovery! You're admitting you want to intimidate with litigation! In fact, Baer's main idea is to use litigation to overwhelm and intimidate one's opponents, whom he compares to military enemies.

But, quite aside from all of that, is Baer's intense little article helpful to Kerry? I doubt very much that Kerry will want to sue: there are plenty of pragmatic reasons not to. But if voters are made to think Kerry should be suing, because characters like Baer are itching for it, voters may conclude that the reason Kerry isn't suing is that the charges are true.

UPDATE: Here is the Annenberg FactCheck.org analysis of the SBVT ad. The analysis picks carefully through the story of the vet who at one point said he'd made a "terrible mistake" and explains the full basis for Kerry's Silver Star award, with a link to the official citation. This vet (Elliot) seems, in the FactCheck analysis, to be someone who is sadly torn between two positions perhaps because many different people have attempted to enlist his help over the years. O'Dell, according to FactCheck, was "a few yards away" from the events that led to the Bronze Star, and the man Kerry is said to have saved, Jim Rassmann, contradicts O'Dell.

It's not surprising that O'Dell's story did not make it into the record, but I have to say that it seems scurrilous to feature O'Dell in the ad, when his is only one version of a story, and the official record does not back him up. The same is the case for Elliot. I don't know who's telling the truth, but it is deceptive to have an ad with only one version of the story told. Challenging someone's war record is an ugly thing to do, as I've said before, and one ought to have very solid proof that you are right before going down this road. I also think Kerry has some responsibility for motivating an attack in this form by allowing himself to be portrayed as a war hero at the Convention, rather than concentrating on more current issues. But given all the awards, it is appropriate to refer to him as a war hero.

It was overdone at the Convention, but that doesn't justify a scurrilous response. The ad oversold the material that was available, and that really was unfair. FactCheck's conclusion is: "At this point, 35 years later and half a world away, we see no way to resolve which of these versions of reality is closer to the truth." That sounds about right to me, and that's the right criticism of the ad. I will also note, to reclaim this update as it relates to the Baer article, that it is also a reason why Kerry should not sue and should not be faulted for not suing.

UPDATE: Beldar has a lot of good analysis of the Baer piece.