"Former U.S. Sen. Jon Kyl will be John McCain's successor in the U.S. Senate."

AZcentral reports.

Jon Kyl, once one of the most powerful Republicans in the U.S. Senate... will fly to Washington, D.C., following [Gov.] Ducey’s announcement. He retired in 2013 after rising to become the second-highest-ranking Republican senator.

Kyl has agreed to serve at least through the end of the year, a representative for Ducey said. If he opts to step down after the end of the session, the Republican governor would be required to appoint another replacement, the aide said.

"Republican senator John McCain is still raising questions and hackles."

Hackles again! Can't get enough hackles in the big media... when the topic is Republicans.

A few days ago, the NYT lit into Ted Cruz: "Texas Senator Goes on Attack and Raises Bipartisan Hackles." And now, it's John McCain who's ruffling the feathers of big media, whose meme is The GOP died. So, whenever a Republican Senator is anything by docile and deferential, the Death-of-the-GOP meme must be swapped out long enough to discipline the outlier. The standard message is: Nobody likes you. Metaphor of choice: Hackles. You're raising hackles.

Here's my meme for that media discipline: When they say hackles, I say hacks.

"No Apologies: Why Mitt Romney Should Own His Rapaciousness."

That's the headline provided by email from The New Republic for this article by Timothy Noah, which, at the page, is headlined "Mitt Romney, Crybaby Capitalist."

I know, Noah is irritating if you're not rooting against Romney, but isn't there something to this point? It's something David Gregory kept trying to bring out on "Meet the Press" last Sunday. First, he was talking to Ed Gillespie (Senior Adviser, Romney 2012 Campaign/Former Chair, Republican National Committee), and I'll just ignore Gillespie's evasions. Here's Gregory, spliced together:

"Cantor and Kyl just threw Boehner and McConnell under the bus."

"This move is an admission that there will be a need for revenues and Cantor and Kyl don't want to be the ones to make that deal."

So says "a senior Democratic aide" after House Majority Leader Eric Cantor and Senate Minority Whip Jon Kyl dropped out of the debt talks today, leaving no Republicans in the group.

"I don't need to hear the sanctimonious lectures of Sen. Kyl and DeMint to remind me of what Christmas means."

Said Harry Reid.

Am I sorry not to be live-blogging the Kagan hearings today?

I don't want to slog through the Senators reading their questions to the nominee. It's such a slow-motion ritual. Her answers are so predictable. But what I find most annoying is the Senators' inability to do proper followup questions to force her to get past the predictable. For example, from my live-blog yesterday:

Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.

If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.

Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet. (Technically: on their asses.  We say "asses" now in polite company, of course, after this and this. It's standard American speech in 2010.)

I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.

Who really has an interest in attacking Kagan? I think that it is the strong ideological progressive who doesn't care much about the political fate of the Democratic Party. Can you see why? I'll try to spell it out later, but, right now, I need to get out in the real world....



And we know where the ripe black raspberries are!

"So Obama, Pelosi, and Reid are in a row boat, and it springs a leak and starts to sink. Who gets saved? The American people."

Senator Kyl tells a poor joke and gets "a big laugh" at the National Republican Senatorial Committee retreat.

Kyl's joke is...
	... terrible because it envisions the death of real human beings.
	... terrible because it's either old or it sounds like it's old.
	... okay because who cares what dumb verbiage was used to loosen up a crowd.
	... okay because it conveys a core truth that justifies a little sadism.
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What Goodwin Liu said about Samuel Alito...

At his confirmation hearing, lawprof Goodwin Liu, nominated for the 9th Circuit Court of Appeals, is  being taken to task by Senator Kyl for what he said at Samuel Alito's confirmation hearing. (There is also talk of Liu as a future Supreme Court nominee.)

“Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man,” Liu wrote. “I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

The testimony was “vicious, emotionally and racially charged, very intemperate, and to me it calls into question your ability to approach and characterize people’s positions in a fair and judicious way,” Kyl said.

Liu only acknowledged that this language was “unnecessarily flowery.”

Flowery? As Lou Reed once sang, "Vicious, you hit me with a flower...."

Arlen Specter wants Justice Stevens not to retire this year.

"I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there's a much better chance we could come to a consensus."

Obama should just pick a relatively moderate liberal judge. That would avoid the filibuster this year, and it's what he'll have to do next year. So what is Specter talking about?

Specter is bouncing off what Senator Kyl said:

"I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test," Kyl said. "And if he doesn't nominate someone who is overly ideological, I don't think -- you may see Republicans voting against the nominee, but I don't think you'll see them engage in a filibuster."

So, you see my point. Maybe what Specter is really thinking is that it will hurt the Democrats in the fall to spend the summer paying attention to the subject of liberal ideology on the Supreme Court. Specter has been on the Senate Judiciary for a long time, both as a Democrat and a Republican, so he knows all about the way the 2 parties manipulate the occasion of Supreme Court nominee hearings.

"For me, it's always been taking the facts of the case and applying them to the law."

Said former Wisconsin Supreme Court Justice Louis Butler, testifying before the Senate Judiciary Committee yesterday, in a hearing on his nomination to the federal district court here in the Western District of Wisconsin. He is, in what has become typical confirmation hearing ritual, asserting his faithfulness to the law and attempting to quell charges of judicial activism.

But isn't that quote interesting? In the established liturgy, judges aver that they apply the law to the facts. For example, Sonia Sotomayor said: "The job of a judge is to apply the law... The judge applies the law to the facts before that judge."

Butler, however, said, "For me, it's always been taking the facts of the case and applying them to the law." He said that he would apply the facts to the law. Now, I don't for one minute believe that he meant to flip the ritual phrase around. I think if he were confronted with the point I'm making here, he would immediately switch the words back to the liturgical form used by Sotomayor and countless others:  "The judge applies the law to the facts before that judge."

Think what it would mean to apply the facts to the law. You begin with the factual context of the case. That is the part you know. Then, you must find the law through the use of the facts. Imagine a judge who really believed that the facts determine the law. Read this important interchange from the Sotormayor hearings:

KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....

KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

Wouldn't a judge applying the facts to the law do what President Obama said he thinks a good judge will do?

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I.e., apply the facts to the law.

Did you notice how Sonia Sotomayor has backed away from any identification with Obama's notion that "empathy" is a component of judging?

I sure did, as you can see here. I'm on the phone doing a call-in show on Minnesota Public Radio during the Judiciary Committee's lunch break today:



For reference, here's what Obama said about "empathy," and here's what he said about "heart."

And now read the whole interchange between Sonia Sotomayor and Senator Jon Kyl. Let me highlight some of it:

KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....

KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.