The Race to Spin Alito

It didn't take the liberals long to catch up to the conservatives in the race to paint a picture of Judge Samuel Alito for the consumption of their followers. I don't think I'm going out on a limb by pointing out that ThinkProgress seems displeased. Howard Dean proclaims that the nomination is a distraction from the administration's current troubles, and calls Alito an "extreme conservative" and an "activist judge."

Given the clamor from the right insisting that Bush appoint a judge with an indisputably conservative track record, Kos says, "They wanted a showcase of conservatism they could shove down the throats of the likes of us liberals and the rest of America. They wanted one of those obnoxious touchdown dances."

The trouble with this characterization is that it's premature, and quite possibly flat-out wrong. Alito is almost unfailingly conservative in his decisions, granted, but there are indications that his opinions are more "lawyerly" than the "bombastic" opinions of Justices Scalia and Thomas. (Nonetheless, it is amusing to imagine George Will doing a touchdown dance.)*

Maha's diary entry at Daily Kos discusses one case in which Alito came down against a ban on so-called partial-birth abortion.

Alito's concurring opinion (scroll down to the bottom of the decision to find it) in the case begins: "I do not join Judge Barry's opinion, which was never necessary and is now obsolete" due to a Supreme Court ruling handed down after Barry had written the opinion. Alito's concurring opinion was based entirely on the Supreme Court decision and why he believed it definitely did apply to the case before the 3rd Circuit. This means it should not be taken to betray anything about Alito's views other than that he respects the hierarchy of American courts.

(And as far as punctuation goes, I'm thrilled Bush didn't pick another nominee whose name ends in s.)

*My sincerest apologies for the Krauthammer touchdown dance remark. It was unintentionally insensitive -- I had no idea he was disabled.

By Emily Messner |  November 1, 2005; 9:01 AM ET  | Category:  Beltway Perspectives
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Posted by: Che | November 1, 2005 12:00 PM

I agree, Emily, that Kos' characterization of Alito is premature. But aren't most comments at this point premature?

Hey, I've got an idea. Let's have a hearing...I dunno, maybe let a Senate committee hold it with Democrats, Republicans and Judge Alito. It would probably be good to have some Senators on the committee who know something about the judiciary. Let them ask him questions about his judicial philosophy and then we'll know what it is.

Then, perhaps we can make intelligent comments about what kind of justice he might make.

Love to all.

Posted by: Salt | November 1, 2005 12:09 PM

For the best in Old Line Marxist Ideology go to:

Posted by: Salt | November 1, 2005 12:12 PM

I am against this nominee. I don't think he is a horrible person, I just believe that the Supreme Court needs more diversity in its makeup.
If confirmed, Alito would be, of the 9 justices, the:
8th caucasion
8th male
8th from east of the Mississippi
8th attendee of either Harvard or Yale
7th from the northeast
5th Roman Catholic
It is a small pool from which to select Supreme Court Justices. Are only white males from the northeast who attended Harvard or Yale qualified to make reasoned judicial decisions? Only one southerner (Thomas)? Only one woman is qualified? Not one Baptist or Agnostic? A Westerner?
Is he the most qualified? Next to Miers?

Posted by: Mark | November 1, 2005 01:00 PM

As long as they don't try to legislate from the bench and stick to interpreting the laws, it shouldn't matter. But it does matter to the Dems.

Dems want a Liberal because they want to legislate from the bench, and that is not what the Supreme Court is for. Congress makes the laws...remember Civics classes and American Government classes from grade school?

Why should we have someone on the bench that only wants to change the laws by ruling in favor of their political base?

Why should we not have someone on the bench who will keep things the same?

Posted by: BT | November 1, 2005 03:39 PM

Liberals legislate from the bench?

Ha Ha Ha!

You've been drinking the Kool-aid, dude. It's the righties that want to ram their personal morality down our throats. It's the righties that want to dump legislation passed by Congress. IT'S THE RIGHTIES THAT WANTED TO SELECT THE PRESIDENT OF THE UNITED STATES.

I'm am so SICK of Re'thug LYING. If you can't tell the truth, try silence. Enough of your lies already! We got into a war because of Re'thug lies, isn't that enough? Thousands are DEAD!!! Where's the shame??

Here's the TRUTH. These folks checked which judges struck down Congressional laws most often. (Hint: striking down laws passed by Congress is considered 'judicial activism').

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

(PAUL GEWIRTZ and CHAD GOLDER, in NYTimes 7/6/2005)

Posted by: camille roy | November 1, 2005 11:42 PM

Dosen't Emily Messner know Charles K. is paralyzed? How could he do a touchdown dance? Sick.

Posted by: george kovach | November 2, 2005 02:55 AM

Very well organized and expressed opinion, Emily.

There does seem to be a discrepancy between conservative philosophy about the supreme court and the current strategy of the Bush administration and his base.

Why would the GOP be so concerned about Elito's stances on "key" social issues if they felt that legislating from the bench was out of the question. Shouldn't social issues be legislated from the bicameral legislature and approved by the executive. Indeed this is what BT was referring to when reminding us of our civics lessons.

The reversalal of Roe v. Wade would most undoubtedly be a classic example of judicial activism, whether that is warranted or not. And in relation to GLBT issues would conservatives be hoping for a judicial ruling replicating the failed defense of marriage ammendment? Is this judicial conservatism? Do we just like to say "conservative" because all else is liberal?

I'd be jumping to hear a response from a conservative cogently defending the proclaimed righteousness of "no judicial activism" while not simply ranting that the left is the only side capable of it.

Posted by: Scott Clement | November 2, 2005 04:30 AM

Mr. Broder has a column in today's post that may help explain the desparation behnd Bush's latest pick. It may satsify the 30% of those in the electorate who call themselves conservatives, but I doubt this pick is going to win over moderates or those on the left.

My main argument against this nominee, and its no fault of his own, is that he's a white male. There are enough white males in the Bush White House and in the GOP members of the Congress, and we all know how their decisions are playing out. We need fewer white males, not more. In case you're wondering, I'm a white male.

My secondary argument against this nominee is that he favored forcing a married woman to notify her husband when she opted to terminate a pregnancy. It's another weary example of males denying women autonomy over their own health care.

Males of all colors have to unbuckle the shackles with which they have enslaved women for centuries. Judge Samuel Alito on the Supreme Court is not a forward step in the evolution of American males or a progressive society.

Posted by: Roger Dier | November 2, 2005 06:43 AM

camille roy,

Why are you so angry, Darling?

If you want to spend your life hating half of the electorate, calling them Thugs and Liars, you will have a sad life, indeed. And how do ever hope to win others to your point of view when you view them with contempt?


If the point of the judiciary is to impartially interpret the law and uphold the Constitution, what difference does gender or color make? Is Female Law different from Male Law? Is African-American Law different from Caucasian Law?

Secondly, do you not think it is reasonable for me to be told before my wife kills the child that is half my responsibility since I, too, was involved in its conception? Doesn't sound like denying autonomy over her own health care. She should not have autonomy over my child.

Thirdly, I have not enslaved any women. Have you?

Love to all.

Posted by: Salt | November 2, 2005 09:13 AM



Posted by: GORDON | November 2, 2005 09:56 AM

I was stunned when Bush selected another mid-50s white male from the Princeton and Yale to replace O'Connor. Is conservatism so narrowly focused that these are the only representatives of Bush's school of thought?

It is clear that Alito has a classic Supreme Court Justice resume tailor-made to get onto a nomination list. It is also clear that he appears to be competent. However, I think that having more perspectives on the court such as a nominee who is a woman, Hispanic, African-American, Asian, or is from a poor background is essential. For Bush to claim that there are no qualified people from these groups is an affront to the American melting pot. If he couldn't find any from these groups who would support his judicial philosophies, then it is even more important that people from these backgrounds be appointed because clearly Bush's philosophies would not be representative of most of the United States. Isn't that the definition of "elitism"?

I have also heard people say that he "didn't have time" to properly vet other candidates. Are they serious? O'Connor announced her departure months ago and everyone knew that Rehnquist was very ill. There has been plenty of time to vet a number of potentially qualified candidates.

Bush's Supreme Court nominee selection process is clearly as broken as the FEMA management process was. This man was touted as a management genius?

Posted by: rd | November 2, 2005 09:57 AM

Personally, I think Bush should have nominated Janice Rogers Brown to the bench. What better way to get the Libs panties in a twist than having a conservative black woman on the court? Same reason they'll fight tooth and nail when Condi runs for Prez. Can't have them walking off the liberal plantation now can we?

Posted by: Dominick | November 2, 2005 10:23 AM

Camille Roy seems to have forgotten that the darling of the Dem Party, JFK, sent our nation spinning into turmoil with the assassination of Diem and the beginning of the Vietnam War.

Now,there is a difference between striking down laws and setting precedents just to make a point.
Those more Left-leaning Justices struck down less laws because most of the laws blasting out of Congress then were Democraticly contructed laws....most of which were frivolous....hence the striking down of them by more conservative Justices.

Posted by: BT | November 2, 2005 10:44 AM

I tend to agree with you Emily. I believe the opposition to Alito stems entirely from this hyped cultural war that is being forced upon us by the right wing and by the media whether they do it witingly or unwittingly.

I was intrigued by David Broder's column this morning wherein he alludes to a recent ABC News/Pew Research survey indicating that people who self-identify themselves as "conservative" make up about 31% of the electorate while those who call themselves "moderate" make up 44%. Thus, it begs the question as to why conservatives act as though they have some magical mandate from the American people to force upon us their very narrow agendas on national security, economic policy, and cultural, religious and political questions?

I note that both Bush and Cheney speak and behave in the same condescending manner, the same arrogant, uberconfident way about having a mandate by dint of the 2004 elections, notwithstanding the fact that they won barely half the popular vote in an election that was less about issues than personalities. The fact that recent polls have consistently reflected the dissatisfaction of over two-thirds of the American people with the direction of the country does not seem to penetrate the thick, insular wall that both Bush and Cheney have constructed around themselves.

Posted by: Jaxas | November 2, 2005 10:50 AM

To all my conservative friends out there: I will make you an intellectual wager. I will wager my reputation that in two or three years the right will once again be grumbling about the new additions to the Supreme Court. I predict that they will once again be sorely disappointed because: (1) Roe v. Wade will still be on the books and little will have changed other than a bit of tinkering around its more rough edges; that,(2) hot button cultural issues of concern mainly to the religious right--prayer in schools, the teaching of Intelligent Design in science classes, issues involving Ten Commandment displays, questions involving gay marriage, sodomy and the rights of homosexuals--if they even make it into the Court, will be dealt with in a way far more moderately and tolerantly than they would like, and that (3) fast moving innovations in technology and medicine will render moot much of the debate on the morality of stem cell research, morning after pills and cloning.

I also predict that much of the fear of a wholesale overturning of the more liberal precedents established in the past on the expanded use of the Commerce Clause, privacy and the rights of the accused, and the Stare' Decisus principle being upheaveled will turn out to be unfounded.

It isn't that I doubt that Roberts and Alito are true conservatives. But, when confronted with the real world impacts of how their concepts on originalism would affect millions of poor Americans, minorities whose rights have been hard won and with the negative impact overturning certain Commerce Clause decisions would have on the nation's economy, most jurists whatever their respective ideologies become a good deal more circumspect about revolutionary changes--particularly changes that imply a return to times that we would rather forget.

Posted by: Jaxas | November 2, 2005 11:19 AM

Since we will have everyone weighing in on the Alito nomination --- I would like to voice my opinion for WOMEN all over the United States - Not Republican/Democrats, Extreme Right/Left or even Pro Life/Pro Choice but WOMEN. What about the slap in the face that all women got from Bush with the "two" nominations????

We were given a smoke screen -- a nice middle-aged single lady from the 1950's, portrayed as adled, who was totally unqualified and brought nothing to the nomination - but she was the best he could find to bide for time; then, when the time was right, Bush and the Conservative base bring in Alito - and, what happens to that qualified woman?

Although I am a moderate and a recovering republican (thanks to this administration) I know that there are many, many qualified conservative women who he could have nominated on the first go 'round and I would like to see a discussion on this by other professional men & women. (thank you Roger for your comments on this topic)

I cringed when I read about the spousal consent and thought about abused women who finally make a moral and ethical decision only to have to ask permission? (thank you Roger for your comments on this topic)

On the FMLA piece my daughter and her husband just took advantage of this-- when they gave me my first grandchild and (many undergoing chemo need this time as well)- and, as far as Machine Guns in the Streets (guess we need them for all the terrorists coming over the borders)?? Etc., etc., etc.

We need diversity on the bench and it's time we speak up about it!!

Posted by: Paulet | November 2, 2005 11:55 AM

I was disappointed that Bush did not name a woman or minority for this appointment, but one of the reasons why is very depressing: Democrats will approve a white male conservative far more easily than they will a female and/or minority conservative.

Why? Because having prominent female/minority conservatives flies in the face of Dems' self-image as the rightful and righteous representative of all women and minorities. If you doubt this, ask any moderate or conservative African-American politician about the vicious, highly personal attacks that he/she has endured from Democrats, especially minority Democrats. Janice Rogers Brown would have been filibustered faster than you can say "Aunt Thomasina".

Oh, and however you might feel about it, Roe v. Wade WAS, in fact, legislating from the bench; Congress did not pass a law invalidating State laws restricting abortion. And if Roe is ever overturned, it will not be because of a group of conservative ideologues on the bench, it will be because its constitutional foundations are among the most tenuous of all major court decisions of the last 100 years. And even then, overturning it will have little practical consequence, other than perhaps a bit more parental notification here and there. It should be and will be a democratically-resolved issue. So sorry, Frightened Lefty Liberals and Rad Right Wingers; you're both wrong.

Posted by: Steve | November 2, 2005 12:29 PM

All this grumbling about "he should of nominated a woman, or a minority, a one-legged native american lesbian, etc.". Listen, Congress is where you elect people to showcase "diversity". There is no "feminist" interpretation of Admiralty Law, or a "minority" perspective on the 3rd amendment. Judges are there to judge the constitutionality of the law, not make it. If you want to nominate some candidate to showcase your "compassion", try winning an election sometime.

Posted by: Nicola | November 2, 2005 12:51 PM

This nomination has finally demonstrated to me what they mean by "original intent of the constitution's framers" as a criterion for an acceptable justice.

Many of the Southern colonies wanted to have blacks counted as "people" for the purpose of defining representation in the House of Representatives. Since neither the blacks nor women could vote, then the South would have more wealthy white guys running the country than the North would. Hmmm.... sounds like the same philosophy for selecting the Bush Supreme Court - assume that all of your supporters want wealthy white guys to represent them on the court.

Posted by: rd | November 2, 2005 12:52 PM

The reference to Charles Krauthammer was in extremely poor taste.

Posted by: Mary | November 2, 2005 12:54 PM

I agree with Salt. The Supreme Court shouldn't be a vehicle for the Equal Rights Amendment... we should be more interested in how these judges interpret the constitution, no matter what color their hide or the God they kneel to.

And the more I read about Alito, the more I (grudgingly) like him. He seems to be a strict Constitutionalist with a deep (almost fawning) respect for precedent. And, unlike the current bunch of Supremes, he is very leery of the scope of Congressional power. It will be nice to have some adult supervision on the Court... ;-)

BTW: I have a few friends who've said the Miers debacle was a just smokescreen engineered by the Bushies in order to get their real pick - Alito. (I think that ascribes entirely too much cunning to the administration.)

Posted by: Bigmonkeychild | November 2, 2005 12:56 PM

You must be joking with the line, "It didn't take the liberals long to catch up to the conservatives in the race to paint a picture of Judge Samuel Alito for the consumption of their followers."

The radical Left were the first to portray Alito negatively to their followers. Less than two hours after the announcement, NOW had a raging angerfest of a press conference about him.

What universe are you living in? I thought journalists were supposed to have powers of observation? Yours (and your viewpoint, thus all your "reporting") is clouded by your Leftism.

Posted by: Tim | November 2, 2005 01:00 PM

Saying that overturning Roe v. Wade is "judicial activism" is really off the mark. The decision itself was "judicial activism." It invalidated the abortion laws of every state. Returning the abortion issue to the elected representatives of the people is admirable judicial restraint, in fact. And that applies to other controversial social issues, such as homosexual rights, etc. Do we, or do we not, trust the people to make the right decisions where the Constitution is silent on particular questions (such as abortion)?

Posted by: John | November 2, 2005 01:03 PM

All: A simple plea - before posting your opinion on this most important subject, please make an effort to inform your views by first reading the text of the decisions which are central to the debate. All of the decisions of Judge Alito are readily available on this and other websites. Please also be accurate in referring to the subject matter of these writings, e.g., Planned Parenthood v. Casey does not involve spousal "consent," it involves spousal "notice." A big difference.

Other than that, go ahead and beat yourselves senseless with your hair pulling, hand-wringing and teeth gnashing.

Posted by: rufus | November 2, 2005 01:04 PM

P.S. I agree with those who found the reference to Charles Krauthammer to be in poor taste. Like him or not, I don't think his disability should be used for poking fun.

Posted by: John | November 2, 2005 01:11 PM

"Saying that overturning Roe v. Wade is "judicial activism" is really off the mark. The decision itself was "judicial
-Wrong. Once an opinion is established, it is part of the law of the land. To overturn it is, indeed, being an activist.

"Those more Left-leaning Justices struck down less laws because most of the laws blasting out of Congress then were Democraticly contructed laws....most of which were frivolous...."
-Wrong. It is VERY MUCH not the part of the Supreme Court to strike down laws it simply deems, "frivolous." The Supreme Court is not the custodian of the U.S. Code. It is the guardian of the U.S. Constitution. Any suggestion, inkling, or web-posting to the contrary is very badly off its mark.

Posted by: Matt | November 2, 2005 01:16 PM

The real question is if up or down votes are so important, why did Miers get run out before review by a cabal of right wingers with extremist views?

Why should that pseudo religious faction have more control over nominees to the supreme court than the elected representatives of half the country?

James Dobson gets a veto, but a fillibuster is "unconstitutional"?

I don't think you have to read the footnotes in the federalist papers to discern the intent of the founding fathers on unelected factions.

Posted by: feckless | November 2, 2005 01:23 PM

Oh, and one other comment on the "try winning an election" crap, the constitution is supposed to protect the RIGHTS of the political minority, not empower the majority to do whatever they want when they want. I know all you Coulterites love to call anyone who disagrees with you a traitor, but one of the ideas behind American government was a loyal opposition.

Thats news on Krauthammer's disability, but Scalito is opposed to the americans with disabilities act, so I'm sure Chuck will be just fine, with this non-ideological-lifetime-appointed judge.

Posted by: feckless | November 2, 2005 01:28 PM

Rufus: There is no need to get picky, the last thing we need to do is cloud the issue with facts.

Posted by: rohit | November 2, 2005 01:39 PM

First, as far as Charles Krauthammer is concerned, haven't you people ever heard of a metaphor? Surely you didn't think that Ms. Messner meant a literal caper in the Redskins' end zone. I read Mr. Krauthammer and watch him on some of the political shows and he is obviously smart and has a sense of humor. Although he is much more conservative than I am, believe that he is fully capable of not only performing, but enjoying a metaphorical "touchdown dance."

As for Roe v. Wade, it can be seen as judicial activism, but if I remember the Pleistocene Era news correctly, the decision was based primarily on the equal protection clause. If states are allowed to determine whether abortion is legal within its jurisdiction, then women in states that prohibit it do not have equal protection. Those who could afford to have travel would have access to abortion, those who couldn't wouldn't.

In addition, where life begins is a matter of religious interpretation. There are millions of Americans who believe that it begins at conception and want the laws to reflect that view. There are millions of others who believe that it begins at viability outside the womb. They want to be allowed to hold this view without being bound by the stricter construction.

The "gay agenda" (man, do I hate that phrase), is merely to have the same rights and responsibilities as heterosexuals. The right to co-ownership that doesn't disappear at the death of a loved one, the right to determine medical care in case of disability, to be entitled to keep one's child in the event of the death of one's partner.

If the government doesn't want to bestow the rights and responsibilities of marriage on the entire population, it shouldn't bestow them on any of the population.

Posted by: Kate | November 2, 2005 02:31 PM

First and foremost:



Granted I don't know Emily on a personal level at all, and can only base this judgment on the tone and substance of her writings that I've read, but I'd be inclined to guess that she wasn't aware of the fact that CK was physically crippled. I never knew that fact and I pay at least reasonably close attention to politics and political writers. If I am wrong then I am wrong, but I highly doubt that any malice was intended there if for no other reason than the fact that Emily is a very intelligent woman and knowingly mocking a crippled guy in print isn't exactly the smartest thing in the world.

On the more important subject of the Alito nomination...

I'm not a big fan of the argument that Bush should have nominated a minority candidate just because there are not a lot of minority candidates on the bench. In my opinion, the best policy for Supreme Court nominations, the ONLY policy for Supreme Court nominations, is that the president should find the smarest lawyer he can find and put that person on the bench. Period. The country is best served when issues are debated openly and honestly.

So conservatives, you think that homosexuality should be criminalized? Fine. Make your best argument openly and honestly instead of hiding behind "no legislating from the bench" rhetoric. Oh, and come up with a better argument than "the Bible says so".

So liberals, you think that abortion should remain legal and easily available? Fine. Make your best argument openly and honestly instead of hiding behind the "precedent should be respected" rhetoric. Show me the scientific studies that prove when exactly a fetus makes the leap from a bunch of cells to a baby.

What happened with Robert Bork was good for America because everyone knew where the man stood on every issue that matters to us as a country. His stances were discussed and debated right out in the open BEFORE he became a supreme court justice. Conservatives, if you're so sure that the American people are behind your ideals then quit hiding behind the "no litmus test" crap. Come out and say, "we hope this guy outlaws abortion and here is why..."

Just my opinions.

Posted by: J. Crozier | November 2, 2005 02:48 PM

Unfortunately, Mr. Krauthammer won't be doing any kind of dancing, touchdown or otherwise. He's been a paraplegic since 1972.

Posted by: John | November 2, 2005 02:54 PM

::sigh:: I know that he's a paraplegic, that's why I stated that the dance would be "metaphorical."

Posted by: Kate | November 2, 2005 02:58 PM

when will athiests be represented at all in this country?

Posted by: jeb bush | November 2, 2005 04:11 PM

Matt said,"Once an opinion is established, it is part of the law of the land. To overturn it is, indeed, being an activist."

Like the Dred Scott decision?

Also, Jaxas said that he predicts in a few years conservatives will be angry at Justices Roberts and Alito because "hot button cultural issues ... will be dealt with in a way far more moderately and tolerantly than they [conservatives]would like."

What conservatives "like" in a Supreme Court ruling is for the Justices to interpret the Law of the Land. According to the COnstitution, the Legislatures make the law. The Supreme Court determines if the law in question violates any of the sacred rights guaranteed to all US citizens. The Majority gets to make the laws any way they wish, as long as the law does not violate the aforementioned rights. The rights may favor the majority or the minority. That is not the issue. The issue is one of Legislatures writing law and Courts interpreting law.

Believe it or not, conservatives are just fine with this arrangement, even if certain "cultural hot button issues" do not go their way. Conservatives want to "conserve" the balance of power and the system of checks and balances that are enumerated in the Constitution.

Love to all.

Posted by: Salt | November 2, 2005 04:44 PM

Why does eveyone have to take things so seriously? The whole Krauthammer thing was metaphorical. She could have said Krauthammer would be "over the moon", but it doesn't mean he's become an astronaut. When I say I could eat a horse, it is a metaphor - I don't actually intend to eat a horse.

OK, OK, I understand the insensitivity bit. If it was intentional, OK, that's in bad taste. But I don't think it was. I honestly don't think a Post writer would diss another Post writer like that a) intentionally and b) publicly. This is not the New York Times and we're not talking about Judith Miller and Maureen Dowd.

People have no idea about context. She was paraphrasing a Daily Kos article which she had earlier quoted. The Daily Kos said, "They wanted one of those obnoxious touchdown dances." Emily said, "(Nonetheless, it is amusing to imagine [CK] doing a touchdown dance.)." Context, people, context.

To quote Governor Schwarznegger, you're all a bunch of girly men. Stop being so sensitive and try taking things at face value for a change instead of assuming every comment is part of a "liberal agenda".


Posted by: Derek | November 2, 2005 04:56 PM

I see Emily changed the Krauthammer comment to be about George Will instead. So we don't offend any more pansies out there, have we established that George Will has full use of both of his legs?


Posted by: Derek | November 2, 2005 04:58 PM

Salt said, "Matt said,"Once an opinion is established, it is part of the law of the land. To overturn it is, indeed, being an activist."

Like the Dred Scott decision?"

Dred Scott? Aye carumba. Sure, there's cases where stare decisis did not carry the day. But, let's not confuse the issue by throwing in a case that's terribly laden with other baggage. If you want to do a sound-off of, "Cases where the Supreme Court reversed itself" against, "Cases where the Supreme Court acknowledged existing precedent in arriving at its decision" then let's get it on.

Later, Salt said, "The Supreme Court determines if the law in question violates any of the sacred rights guaranteed to all US citizens." And aye, here's the rub. The issue between justices is how does one interpret a text that was written over two hundred years ago to apply to current society? What are, "the sacred rights guaranteed"? To what extent does the Constitution live and breathe? As new situations develop, does the Constitution favor the individual or the government? These are the questions that begin to differentiate a liberally-inclined justice from a conservatively-inclined one, not platitudes such as one side wants their justices to interpret the Law, which is obviously shared by both.

Posted by: Matt | November 2, 2005 05:05 PM


You are absolutely right. Deciding what those sacred rights are is not as simple as interest groups from all pov's make it out to be.

For example, if some day medical technology brings us to the point where every fetus is viable and any unwanted pregnancy could be treated by having the fetus removed and allowed to fully develop in an artificial womb. (Please don't get all excited about this hypothetical. I'm discussing the underlying theme of changing circumstances.) Would the fetus have the right to live? What about the husband's rights (Pennsylvania v. Casey notwithstanding)? Would a future court have a duty to consider the individual rights of the fetus and husband or would the government compel the deaths of children to enforce its view that the woman's right to self-determination trumps the rights of other persons?

Thanks for a reasoned post.

Love to all.

Posted by: Salt | November 2, 2005 05:25 PM

The more I hear about this character, the more I hope that the Dems will fillibuster this character.

Posted by: gretchen hollars | November 2, 2005 05:37 PM

I still don't see how a hearing will be more indicative of the candidate's moral stance, than the history of decisions he has made. It seems the hearings are almost worthless unless you are clearly inept (prev. candidate).

On another note: have I been stuck in a cubicle for too long if I find Messner strangely attractive??

Posted by: John | November 2, 2005 06:29 PM


The reason hearings help is that the nominee and the Senator get to ensure that the Senator (and the American people)accurately understand what the nominee meant in the reasoning behind and the writing of his opinions.

Lord knows that political people read court opinions through a political lens. The back and forth, face to face of a hearing allows for clarification of sometimes very nuanced matters of law.

Then, the nominee has a fair chance to defend his writings and each American can make up his or her own mind.

What a concept.

Love to all.

Posted by: Salt | November 2, 2005 06:46 PM

RE: The difference between social and judicial conservatism

Contrary to popular belief, social and judcial conservatism are not synonymous. Social conservatism is a political movement, usually (but not always) identified with the Republican party, that espouses a series of political and cultural positions; i.e., opposed to abortion, opposed to many social welfare programs, in favor of a strong national defense and economic liberalism. Of course, even within the social conservative's camp there are divisions between "neo" conservatives (advocating government spending on behalf of conservative social goals) and old-line conservatives, also known as classic liberals (see: Smith, Locke, etc.). We usually think of social conservatism in terms of the "right" to social progressivism's "left".

Judicial conservatism, on the other hand, is a legal philosophy, concerned with judicial decision-making. Judicial conservatism is also known as "judicial minimalism", "textualism", and "originalism", and encompasses a wide variety of approaches to the case at bar. Textualists, such as Justice Scalia, hold that the primary source of information for interpreting any textual provision (like the Constitution) is the text itself. Justice Stevens, on the other hand, is more likely to examine other sources of information, including the effect on the parties, decisions in other jurisdictions, change over time in historical or cultural views, etc. The disagreements between the two are fundamentally different than between the right and left, or Republican and Democratic Parties.

When evaluating judicial nominees, consider a wide variety of cases before coming to a partisan conclusion. What is the nominee's position on deference to the executive branch? To the legislative branch? How does the nominee treat academic observers, or foreign judicial bodies (like the European Court of Human Rights)? These questions are much more pertinent to evaluating a nominee's judicial philosophy (and likely voting pattern) than looking at any issue group's "voting record".

In any case, equating social and judicial conservatism is not just inaccurate, but a waste of time.

Posted by: ST | November 2, 2005 06:54 PM

One further point:

"Judicial activism" is a worthless phrase in almost every respect and should probably be discarded. A judicial progressive who expands the category of "fundamental right" to encompass a right to privacy is not necessarily any more active than a judicial conservative who invalidates portions of a legislative act that impinges on state sovereignty. Instead of activism, try using progressive v. textualist (or minimalist or conservative), meaning the difference between what the text says, and what we might interpret it as meaning.

Posted by: ST | November 2, 2005 07:05 PM

I wish it was so... There is some merit, but in the end as history has proven, there is no guarantee that they will perform in the way they stated. I guess the same case can be made for precedence. I just think the best indicators are past actions.
In the end I would preffer any "judicial" non-moralistic, non-religious choice ( what John Roberts seemed to be ).

ps. thanks for the post and Emily is cute :)

Posted by: John | November 2, 2005 07:16 PM

Yes, Emily is cute.

Posted by: Salt | November 2, 2005 07:30 PM

Matt you say that Roe v Wade is not an example of "judicial activism" and your reasoning is "once an opinion is established it is, it is law".

The whole argument is whether or not the decision of Roe v. Wade, is constitutional.

We have Roe v. Wade because a group of citizens brought their argument before the Supreme Court and the Supreme Court agreed with this group. According to you to any attempt to change the law is "judicial activism". Based on that type of thinking, all decisions are permanent, binding and irreversible. Isn't that the exact opposite of what the Supreme Court is there for?

I find it interesting that anyone with an opposing opinion is considered an "activist". Activism is what propelled this nation into being. The authors of the Constitution were some of the greatest activists in history.

Thank God for activism, the 2 party system and the 1st amendment!

Posted by: sc00ter | November 2, 2005 07:33 PM

Matt you say that Roe v Wade is not an example of "judicial activism" and your reasoning is "once an opinion is established it is, it is law".

The whole argument is whether or not the decision of Roe v. Wade, is constitutional.

We have Roe v. Wade because a group of citizens brought their argument before the Supreme Court and the Supreme Court agreed with this group. According to you to any attempt to change the law is "judicial activism". Based on that type of thinking, all decisions are permanent, binding and irreversible. Isn't that the exact opposite of what the Supreme Court is there for?

I find it interesting that anyone with an opposing opinion is considered an "activist". Activism is what propelled this nation into being. The authors of the Constitution were some of the greatest activists in history.

Thank God for activism, the 2 party system and the 1st amendment!

Posted by: sc00ter | November 2, 2005 07:34 PM


I must admit I find the whole concept of "judicial activism" a term elusive of a definition (since, really, it has never been defined, regardless of the number of times that it has been used). However, what I gather from its context is that people mean it to be judicial radicalism; a reaching beyond of established law to fashion new liberties. And in that sense, the overturning of Roe would be extreme judicial activism.

Courts do overturn themselves on occasion. However, the Supreme Court is extremely reluctant to overturn its own decisions on questions that it has already squarely addressed. No current court likes the idea that its decisions will not last so, out of respect and deference, does not generally disturb decisions of past courts.

It does happen on occasion when society has shifted considerably and the Court, recognizing it, shifts alongside. The most recent example would be the decision overturning Bowers v. Hardwick, the Texas sodomy case.

Barring such a shift, however, the Court simply does not like this sort of backtracking. It reduces the meaning and weight of their decisions. It encourages individuals to relitigate issues which have already been decided. It recognizes falliability in the decisions of the Court which erodes upon its credibility. This is the kind of "law" that something becomes once the Supreme Court decides it; not the pedestrian, "you can't hold a parade on Sundays" kind of law. And this kind of law, the Supreme Court does not like to mess with.

Posted by: Matt | November 2, 2005 08:25 PM


Thanks for replying. You are obviously well educated and more learned than myself. I do not have an indepth knowledge of past Supreme Court rulings. That said.

Perhaps, there is a shift taking place in society, as we speak. There is a conservative, "right wing" voice that is growing in America. I know that only 30 percent of the country considers themselves as conservative, yet 85 percent of the nation consider themselves christians. The founding fathers, by a large majority were also christians. (It would seem that the constitution would be "right leaning"??) This shift seems to upset the "left". The conservatives have the same right to make and set policy as any other group. Face it we're never going to have 100 percent agreement on anything! I said all that to say this, I have a right to vote for people who I share the same values, as do you. The 2 party system was designed to have checks and balances. Therefore, the group that organizes, garners support and executes gains control and makes policy. That's the way democracy runs. I don't have a problem with others having different values.

I have a real problem with the bashing that goes on between the different factions. The resorting to name calling, slander etc. All this proves to me, is the person doing this has nothing meaningful to add to the conversation.

Thanks for listening.

Posted by: sc00ter | November 2, 2005 09:22 PM

Excellent post, Sc00ter!

Love to all.

Posted by: Salt | November 2, 2005 09:25 PM

If Alito is read meat to Catholic Conservatives, how would you hypocrites characterize Clinton nominees Ginsbag and Breyer? Kosher salami to (pre-pardon the redundancy) Jewish Socialists?

Posted by: Gaul | November 3, 2005 07:41 AM

Ah, so the CK comment was "metaphorical" -- well, that explains it all right!

She writes for the Washington Post. She should know better.

I guess that means "metaphorically" Emily is an ill-informed idiot -- if, as she claims, she did not know CK was paralyzed.

But hey, I'm just being metaphorical.

Posted by: Red Dirt | November 3, 2005 09:15 AM

Apology accepted. When you don't know, you don't know, even if Krauthammer is one of the most read columnists on public policy in the country.

New question: why does the Post employ a complete and total imbecile as a columnist? Can't they find any liberals to write for them who aren't idiots?

Posted by: Jerry Hurtubise | November 3, 2005 09:25 AM

RD, you seem to be too easily stunned. Maybe it's just a 60's flashback?

Posted by: JH | November 3, 2005 09:28 AM


you have to distinguish between the enactment of ideas in the political realm and the protection of them in the judicial.

the house, the senate, and the president are all elected bodies empowered to set public policy for the nation. in this respect, they are representing, "the will of the people." and it is completely correct that they would represent the views of the majority which elected them.

the courts, however, serve a very different function. the courts protect the interests of the minority against, "the tyranny of the majority." they are a check that all individuals and groups, regardless of their popularity and numbers, receive basic rights which do not become violated by the passage of laws in the legislature. as i mentioned above, the court does shift occasionally on particular questions, but their appointments are life appointments (in the federal system) to remove their obligation to do the popular thing, but instead the right thing.

thus distinguished, you can see why the courts are not a mere extension of political parties or a spoil of the victors to the same extent that control of the law-making bodies are. courts are not there for the majorities: the majorities can pass whatever laws they like without any aid from the courts. the courts are there to protect people from the majorities.

Posted by: Matt | November 3, 2005 09:45 AM

To answer your question Jerry Hurtubise, no, there seem to be fewer educated and informed liberal "journalists" out there. Just look at what they deem to be newsworthy: the arbitrary 2000 mark of dead soldiers in Iraq got more coverage than the more historically important approval of the draft of the Iraqi Constitution. I have to search hard to find anything on the Oil For Food scandal - which I think is a HUGE deal. Thank God for the internet and those "amateur" bloggers out there.

To not know that Mr. Krauthammer was disabled - an easily verifiable fact - seems to be typical of the new journalists being employed by liberally slanted papers, (see Jason Blair and the NY Times,) and possibly why their readership is down.

Posted by: SMB | November 3, 2005 10:04 AM

Excellent stuff, Emily. It's interesting to see how the right is reuniting behind this nomination and how the left, at least the more extreme left, is resorting to juvenile name-calling. And I say that as someone on the center-left myself who isn't terribly happy with the Alito nomination.

Anyway, if anyone's interested, I'm doing a series at my blog called Scalitovision 2005, a round-up of reaction of the best voices from across the spectrum. Here's a link to Part 2 (many more to follow):

Posted by: Michael Stickings | November 3, 2005 10:16 AM

Salt, I too am keen on preserving the balance of powers that our Founders so wisely placed in our Constitution. But, I also believed the Founders left ample room for the sort of expansive view of the rights and powers--both enumerated and implied--that subsequently grew out of the Marshall Court following Marbury v. Madison and McCulloch v. Maryland.

The concept that in addition to the so-called "enumerated powers" listed in the Constitution, the document also implies powers beyond those enumerated by dint of that particular language giving Congress the power to "execute" the aforegoing powers. The Implied Powers Doctrine has remained an integral part of the Constitution since those hallowed rulings and has been the basis for what conservatives lament as "judicial activism".

Absent judicial activism, much of the progressive march in the 20th century--which benefitted as many conservatives as liberals--would not have been possible. Also, absent a certain amount of judicial activism, the present Bush administration might not exist at all given a remand of Bush V. Gore back to the state of Florida for resolution. Nor would it be possible for those conservatives to dream of using judicial activism of their own contrivances to overturn much of the past decisionmaking of the Court.

Look. Any Constituion that is looked at as being "absolute" in its maeanings, forever relegated to using 18th century thinking in its formulations, is a Constituion that is not worth having. It either adapts, evolves and grows within the society it is meant to protect, or it becomes extinct.

Posted by: Jaxas | November 3, 2005 10:22 AM


Your post is a joke.

The fact that there have now been 2,000 American soldiers killed in operations is a major milestone unless you don't support the troops. They are fighting and dying over there and you don't think that they are newsworthy? You should be ashamed. I hope you don't have any friends or relatives currently serving over there.

Things you're more interested in: the approval of a draft constitution? Small significance. There's many such events. The Iraqi oil scandal? No new news that shifted the way we thought about things.

Again, I hope you don't know anybody in the military because for you to think that their paying the ultimate sacrifice is worth the nation knowing, you would shame them for only knowing you.

Posted by: Matt | November 3, 2005 10:31 AM

I think there's a lot of incomplete reporting about the Planned Parenthood vs. Casey case. Here are some facts:

Section 3209 of Pennsylvania's abortion law provided that, "except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her."

The Court of Appeals, in overturning Section 309, concluded that the "undue burden" standard adopted by Justice O'Conner in Webster and Hodgson governed this case. This standard defines an "undue burden" as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Judge Alito observed in his partial dissent to the Court of Appeals majority opinion, that "the Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion."

Arguments before the Supreme Court focused heavily on the influence of spousal abuse on the notification requirement. Justice O'Conner, in a plurality (not majority) decision, concluded that "Section 3209's husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely", and that "regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."

Whatever your opinions on this case, Judge Alito's dissent can hardly be characterized as the views of a radical woman-hater, especially since polls consistently show that over 80% of the public support spousal notification.

Posted by: Ken Moon | November 3, 2005 10:32 AM

*My sincerest apologies for the Krauthammer touchdown dance remark. It was unintentionally insensitive -- I had no idea he was disabled.

I had no idea.

understaement of the month, would like to learn more capital ethics from others who have "no idea"

Posted by: jeff | November 3, 2005 11:14 AM


Point taken. And beaten. And beaten. And beaten. She did not know. Let. it. go.

Posted by: Matt | November 3, 2005 11:18 AM

Why do liberals think it's okay to make fun of paraplegics if they're conservative paraplegics?

Posted by: Al | November 3, 2005 11:24 AM


I noticed you never answered my hypothetical. That's fine. I just want to if you could foresee changing times and circumstances that might warrant more protection of individual rights against government heavy-handedness. Could you ever imagine circumstances where a woman's right to choose is balanced with an unborn child's right to live or a husband's right to have his lawful offspring alive rather than "terminated"?

"You've put me in a damned awkward position, viz a viz my progeny" Ulysses Everett McGill

Posted by: Salt | November 3, 2005 11:46 AM

Silly people! She didn't mean that Krauthammer's dancing would be funny-looking because he's in a wheelchair - only that ANY white guy dancing funny-looking.

Seriously though what are the odds that she truly had no idea that he was paraplegic? Slim but still possible and she deserves credit for a hasty apology although she should have simply scrapped it rather than interchanging George Will into an already soured phrase. What I hope happens is that some blogger digs up a photo of them together or sees that she attended a function where she would have clearly seen him in a wheelchair.

How can you cover washington politics and not know of his situation? That's like a being in the Whitehouse press corps in 1942 and not noticing FDR's propensity to ride around in a chair.



Posted by: Bullwinkle J. Moose | November 3, 2005 11:50 AM


my point exactly you shouldnt write about things you dont know about.

Posted by: jeff | November 3, 2005 11:53 AM

Emily, what would Post readers do without your investigative reporting?

As a conservative, I can only imagine if George Will* had written that same piece with Christopher Reeve or Max Cleland doing "obnoxious touchdown dances".

Hell, you should switch sides, re-write the article, change the names, then sit back and wait for Katie Couric to call you.


Posted by: DD | November 3, 2005 11:57 AM


I do understand your hypo and it is valid.

However, the unborn question goes beyond mere viability in my eyes. Really, the moment our society should step in is the moment at which an unborn is an individual. For it is not our capacity for breath which makes us special and worth defending, but our capacity for thought. It is the idea that there exists an individual, inviolate, which can define themselves against the rest of the world and contribute something unique to the world which justify the protection of human life over Earth's other creatures. And the moment of individualness is a trickier one to measure.

Your more general point, however, that the Court continues to rule as technology and society cotinues to change and define individual rights (and, for that sake, individuals) is correct and valid.

Posted by: Matt | November 3, 2005 12:11 PM

How can you work for the same newspaper and not know Krauthammer was a paraplegic (since 1972)?

Posted by: susan | November 3, 2005 12:22 PM

Next time maybe she'll complain about his having a better parking space?

Posted by: Bullwinkle J. Moose | November 3, 2005 12:31 PM

Thanks, Matt, great post, but I see one possible problem.

You said, " For it is not our capacity for breath which makes us special and worth defending, but our capacity for thought."

I'm sure you did not mean to imply (or is it infer?) that mentally deficient people are less "special and worth defending". I agree that defining individualness is tricky.

The problem is that unless we define all human life as "special and worth defending" we are face with some government (or government proxy, e.g. doctors) deciding who should live and who should die.

Posted by: Salt | November 3, 2005 12:31 PM

I believe EM when she says she didn't know about CK's disability.

But look at all the libs who routinely lampoon Cheney's heart condition! They'd pitch a PC fit if you joked about FDR's wheelchair or JFK's backbrace, but Cheney's pacemaker is fair game, because he's evil I guess.

Anyway, the libs are currently working overtime to sue all the pacemaker manufacturers out of business, so the point may soon be moot.

Posted by: gutta percha | November 3, 2005 12:33 PM


I don't know: how can you have served in the National Guard stateside and then question the patriotism of someone who became quadraplegic serving overseas?

These games are not amusing. They are not policy discussions. They do not lead to any greater understanding, by anybody, of politics in our nation. They are simple smear soundbites that are inappropriate. It is over and done with. Continuing that line only reflects poorly on the person threading it.

Posted by: Matt | November 3, 2005 12:35 PM


I thought of that contingency. Indeed, I have an aunt with cerebal palsy who has been mentally deficient her whole life. However, she still functions in her own way and is still a fun and unique individual in her own way. And I had a grandfather with a living will: if at any point he reached brain inactivity, he wanted the plug pulled, which my family respected when the time came.

So it is not mental activity diminished which disqualifies one from person-hood in my eyes, but the complete absence of thought. And there is no sliding scale. Can I say at what moment this biologically occurs in the unborn? No. And fortunately, I am not anyone being called to make such a decision. However, it is my own personal belief on what constitutes a human individual as a sacred being.

Does this formulation leave our rights in the hands of doctors? Perhaps. But the best that medical science has to offer is greater than what I believe many of us can provide. Certainly me, in any case.

Posted by: Matt | November 3, 2005 12:43 PM


Since you seem to be thoughtful and rational (gasp! in a blog?!!!), whaddya think of this:

A coalition of anti-abortion and anti-death penalty advocates work together to craft a decent "respect for all life" policy for America.

The abortion foes would have to give up the death penalty (I think they would) and the capital punishment foes would have to give up unrestricted abortion. (How many would do that, I dunno.)

Love to all.

Posted by: Salt | November 3, 2005 12:52 PM

I have only seen Charles K. on TV and know he uses a wheelchair--and I'm no journalist. What else DON'T you know and why should I pay attention to you?

Posted by: mikey | November 3, 2005 12:57 PM


I would be strongly in favor of such a movement. Such a movement would also require, in my eyes, a "respect for quality life" movement in parallel. It is not enough to defend the right of someone to be born if you are unwilling to accept, as a society, the burden of giving that child a chance to participate and not simply breathe. It is not enough to commute sentences without committing to rehabilitation.

It is not enough to love life in the abstract: one must be willing to love it in its every particular. And that, I fully support.

Posted by: Matt | November 3, 2005 01:01 PM

Matt- weak-- just like the column and your agenda.


Posted by: susan | November 3, 2005 01:03 PM


Aristotle taught that the virtuous man should only seek admiration of those who, themselves, were admirable. I do not seek your admiration.

Posted by: Matt | November 3, 2005 01:21 PM

Judicial activism.

What a useless phrase. Any court decision can, and will, be viewed as activism by one sector of society or another.

The term is employed by a wide range of political actors, not just conservatives, in order to indicate their suppossed adherence to 'true' law while simultaneously indicating that their opponents seek to corrupt that law.

Merely interpreting the Constitution, whether literally or liberally, becomes a political act which may be describes as 'activist'.

And on the handicap gaffe: In my limited blog experience I have noted the glee with which some posters jump on purported liberals on the issue of handicaps, religions, minority status, etc. . .

Usually, the purpose of these points is to indict the validity of the purported liberal's arguments by arguing that the liberal is, in fact, a hypocrite.

Of course, this rhetorical strategy ignores the fact that the opponent has used another individuals minority status or handicap as a political tool, with little or no concern for the actual wellbeing of that individual. Did any of the debaters demand an apology to Mr Kraumrather? Hmm. . . hypocrisy indicting hypocrisy.

(and so the list will continue with the indicters attempting to hoist me on my own pentard by noting that my explanation of their strategies serves only to indicate my political affiliation, motives, and hypocrisy. Whatever.)

Posted by: | November 3, 2005 01:24 PM

It's good you apologized about Krauthammer but why would you make a commment about a man you obviously don't even know ? Which frankly, I think you new good and well. Else why would you make that comment about a man in perfect condition. That frankly wouldn't make sense. All I have to say is what goes around comes around ! Have a wonderful day !

Posted by: Dana | November 3, 2005 01:27 PM

Here is a simple test, list off the well known disabilities of these figures:

1. FDR
2. Adolf Hitler
3. Yassir Arafat
4. Albert Einstein

If, for some odd reason, you don't each and every one of these well documented cases, perhaps you might extend a modicum of understanding to your fellow writers and posters.

Posted by: chris | November 3, 2005 01:45 PM

To think that you cover politics in D.C. and either did not know that Krauthammer was paralyzed or did not care. Do you have proofreaders at your rag, and, if so, are they as clueless as you are? With that level of intelligence, you should write for the New York Times.

Posted by: John | November 3, 2005 01:46 PM

I didn't know CK was in a wheelchair. I've never seen him on TV, although I don't watch the talking heads much anyway. I've been reading his column for a while though, and it's never been mentioned and his picture above his pieces doesn't show it. I'd be a little skeptical maybe because she does work at the Post after all and maybe you would have expected her to seen him or at least heard about it, but if she is really just a blogger who works for them, isn't it pretty easy to believe she wouldn't know any more than a reader of his would?

Anyway, I think we should cut her some slack. I wonder, do you think he would even be mad? I don't know him or his sense of humor, but maybe he would think it was funny. Not that I would joke about it myself, but maybe it's not so bad, you know?

Oh well, besides for that, I don't really like this blog. I think it's really biased (toward the left) although it is written like it isn't trying to be, so that's annoying, but if we are going to complain about it, we should complain about the content of the ideas, not about accidental or intentional tasteless jokes. just my two cents.

Posted by: me | November 3, 2005 02:13 PM

For everyone truly outraged by the comment about someone who is physically challenged, then you should be triply outraged on the following appointments:

* Gerald Reynolds - recess appointed by President Bush to run the Office of Civil Rights at the Department of Education (60 percent of OCR cases are disability-related). Reynolds told the U.S. Civil Rights Commission that the ADA is one of the "statutes and regulations (that) are going to retard economic development in urban centers across the country." (April 5, 1997)

* John Ashcroft - former Attorney General. As Senator, Ashcroft took the lead role in trying to weaken the due process protections afforded children and youth with disabilities by the Individuals with Disabilities Education Act (IDEA).

* Linda Chavez, Bush's first pick for Secretary of Labor, ridiculed the ADA as 'special treatment in the name of accommodating the disabled.'" (AP, Jan. 5, 2001)

There are others. And I am sure every individual who has posted here today, indignant that someone who is physically challenged could be treated in such a manner, will also take equal time out of their day to write to the White House and reprimand them for supporting individuals who make life more difficult for those who have it so difficult already.

Posted by: Matt | November 3, 2005 02:17 PM

Matt, the ADA *IS*, by it's very nature, special treatment. The question we should all be asking is why, in a day and age when we are supposed to be so civilized, do we need special legislation to treat people "equally"? Why do we have to include through exclusion? The answer is political pandering and both sides of the aisle are guilty of it. If you want to be progressive then get progressive and stop playing partisan games. It's time to get serious about evolving our culture to it's next level but in order to do that we need to shake this paradigm of seperatism. If everyone is in fact equal then one set of laws applied to everyone should suffice. Right? Good luck to you.

Posted by: Bill | November 3, 2005 02:56 PM


Why do we need the ADA? Quite frankly, so that my aunt in her wheelchair can be guaranteed access to buildings. So that there is a ramp for her to come in on and guaranteed width of store aisles to go through once she's inside.

Because it is not in the individual business' interest to cater to the few so it is the job of the government to watch out for them. I don't know about you, but I thank my lucky stars every day that I do not qualify for the "special treatment" mandated by the ADA. I do not envy them and I do not begrudge them. In any case, my point is not to start a policy discussion on the ADA but merely to make sure that everyone who was outraged by the comment were also directing their rage at more productive outlets.

But... it sounds like to me that you are in favor of making a joke about someone doing a touchdown celebration because that is equality, nes pas?

Posted by: Matt | November 3, 2005 03:05 PM

Matt, I'm not in favor of making fun of anyone and how you came to that conclusion is beyond me. I understand that you have an emotional investment in the topic and perhaps that's preventing you from reacting thoutfully to my post. After you calm down and reread my post perhaps you'll understand exactly what it is that I'm saying. Good luck to you.

Posted by: Bill | November 3, 2005 03:42 PM

To Salt,

You wrote: "If the point of the judiciary is to impartially interpret the law and uphold the Constitution, what difference does gender or color make? Is Female Law different from Male Law? Is African-American Law different from Caucasian Law?"

My take on your remarks: Males have different perspectives than females, the same way an African-American judge has a different perspective from a white judge. We are, after all, a sum of all of our experiences. To discount those experiences and interpretations in matters of Federal Law is counter-intuitive to our country's democratic nature.

Salt, You wrote: "Secondly, do you not think it is reasonable for me to be told before my wife kills the child that is half my responsibility since I, too, was involved in its conception? Doesn't sound like denying autonomy over her own health care. She should not have autonomy over my child."

My take: You assume that the fetus is yours; that's not always the case. A child is a person that's born. To call a pre-born fetus a child is perjorative. Besides, what business is it of yours what healthcare choices a woman makes? You have no business in her choices. This is the 21st Century, not the 11th.

Posted by: Roger Dier | November 3, 2005 04:00 PM

I didn't know Krauthammer used a wheelchair, either. At first, I thought this was a weird trick people were using because they couldn't argue with Emily on the merits. From what I can tell, the last time he mentioned his disability was one sentence in a column about John Edwards' overly-bubbly declaration that paralysis could be cured if there were more science funding, and then more extensively in a column he wrote in 2001, in which he justifiably trashes the movie Pearl Harbor.

If he only brings it to his readers' attention every four years or so, maybe, now that the record has been corrected, all his defenders here can stop doing touchdown dances over Emily's error.

Unless, of course, you can't argue her on the merits.

Posted by: Susan W. | November 3, 2005 04:14 PM

Roger, I fail to see how it is pejorative to call a fetus "a child". It would be pejorative to call the fetus "an illegitimate child". Perhaps you meant something else. Regardless, it's not about interjecting into the health care choices of a woman. It's about protecting the rights of the father of the fetus. To argue that a fetus has no father until it is born is ridiculous. Shouldn't the father have the right to be informed of the termination of his child? You can't damage one party to defend another.

Posted by: Bill | November 3, 2005 04:23 PM

A few additional notes for Emily, so that she doesn't make similar mistakes in the future:

Michelle Malkin is Filipina-American.
Clarence Page is black.
Linda Chavez is hispanic.
William Kristol is Jewish.
Maureen Dowd is a woman.
Paul Krugman has a beard.
Molly Ivins is ugly.

Now, nobody would expect Emily Messner to know any of these things - just like nobody should expect her to know anything about Krauthammer's disability. I mean, it's not like she's a politics writer for the Washington Post, right?


Posted by: A.S. | November 3, 2005 04:55 PM

Yes, the Bush administration is hardly ADA-friendly. They also nominated Jeffrey Sutton (I believe Jeffrey is his first name) as a District Court Judge.

This guy argued that state governments cannot be sued under the ADA. (The case concerned unfair employment termination lawsuits).
However, when you consider that all federal elections take place on state and local property, and if a disabled person is unable to participate in his trial due to lack of accomodations... Think about it.

If you're jealous of special treatment, try being disabled sometime and I don't mean with the idea you will get that cast off sometime.
I favor a push towards Universal design. Honda recently made a model "WOW" wagon that is dog-friendly.
With its seatbelts on the floor and fold back seats, it also tested as much easier to get in and to use for children, elderly, and disabled people.

That's what I want to see. The sidewalk curb cuts are an example of universal design. Now you can push a stroller, cart, etc. on and off sidewalks just nicely. As a result, it benefits more than just the disabled.

Likewise, why DO buses have to have those steps, anyway?
Ever tried getting on a bus on crutches, with strollers, etc? If buses could be designed to eliminate the necessity for wheelchair lifts, that would save a lot of money on having special buses which are not always available or that accessible anyway.

Disabled people want to be as independent as possible and not have to rely on the kindness of strangers to open a lousy little door, so on. Would you? Rent a chair for a day and see how well you can get people to help you shop.

Remember you're paralyzed from waist down, you can't wriggle out the chair or bend too far in case you fall out, and then have to drag yourself back in the chair while making sure the chair doesnt fall over too. Makes shopping for toothpaste seem like a bitch, right?

I also have a friend who has been in a wheelchair most of her life. She told me she has been raped 3 times in 2 years.
So much for the kindness of strangers and society at large.

I also have a deaf friend who was mugged by a 15 year old 20 feet from her home. Couldn't hear the boy coming up behind her.

She also has been nearly hit by a car many times, red light runners, wrong-way drivers, and nearly killed in a hit-and-run incident on a bike (she was not at fault-- police determined the car had been speeding 40 mph in a 25 mph zone).

Now she has a hearing dog that she takes everywhere to alert her to traffic and to people behind her, so she can live independently alone.
She was becoming a recluse before, being afraid to go anywhere if it meant she'd have to be outside after dark.

I happen to know a lot of disabled people and they'd say "What about all the special treatment that able-bodied people get??" We are going to have a few thousand disabled people coming back from Iraq.

I will honor them by not even thinking that the ADA is about special treatment, but about providing equal access to dignity.

Posted by: Wilbrod | November 3, 2005 05:07 PM

"*My sincerest apologies for the Krauthammer touchdown dance remark. It was unintentionally insensitive -- I had no idea he was disabled."
Oh course you didn't have any idea he was disabled. you are a Liberal and as such you are driven by emotions and ideas not logic and ideals. In your mind it is OK to blast the disabled as long as you make your point. Remember Karma can come back to haunt you.

Posted by: Wheel_Chair_Bound_But_Free | November 3, 2005 05:17 PM


What if a woman wants to kill her child the minute it is born?

What about the minute before it is born?

Two weeks before?

Are all these "women's healthcare issues" or are there other considerations?

Love to all.

Posted by: Salt | November 3, 2005 05:35 PM

"you are a Liberal and as such you are driven by emotions and ideas not logic and ideals. In your mind it is OK to blast the disabled as long as you make your point."

This is the most emotional, least rational, least reasoned, least fair thing I've read here.

Posted by: Matt | November 3, 2005 05:42 PM


All these critics so interested in handicap rights. Especially the omnicient A.S. for noting all the characteristics of journalistic and important people.

And yet neither A.S. nor anyone else caught the red herring in my little quiz. The Easter Egg? Einstein didn't have a disability.

I guess the criticism here isn't veracity of facts or disabilities.

What else could it be?

Posted by: chris | November 3, 2005 06:26 PM

Good evening, friendly Debaters!

I'm sure most of us here really do believe that the new Supreme Court nominee is a considerably more important issue than my failure to find anything odd about the fact that I've only seen Charles Krauthammer sitting down. (I chose him because he was one of the major columnists who rallied against Miers right from the start, and in no uncertain terms. I could have used Will or Kristol -- I chose wrong. My bad.) So, in the hopes of maneuvering the discussion back to the subject at hand, I offer these clarifications:

1. This is a blog, not a column. So no, I don't have a copy editor. It would be fabulous if I did, but ... it's a blog. I have an editor (there is a difference) but he's got to worry about the Big Picture stuff -- I am responsible for my own mistakes. And yes, this arrangement does mean that occasionally a word will be misspelled or I'll accidentally insult a columnist whose work I admire. I do my best to be as factually accurate as possible, and when a mistake happens, I fix it. This one was fixed -- several hours ago -- as soon as it was brought to my attention by a Debater's comment, which I very much appreciated.

2. As far as who's Filipina and who's Jewish and who's a polka-dotted Pagan, I admit, I don't concern myself too much with that kind of thing. I'm not one who judges based on looks, disabilities, religious preferences or, believe it or not, political affiliation. I prefer to focus on what a person says and does, so please forgive me if I don't always notice the physical features of my fellow journalists.

3. I am not a political writer for the Washington Post (not that political writers should be expected to know this sort of thing either.) I am the writer of The Debate -- a blog on where we debate the big issue of the week. It's been politics a lot lately because that's what's leading the news, but that won't always be the case.

And finally, a special thanks to the Debate reader who took the time to track down my phone number and so kindly call to berate me for my honest mistake. (Note: If I wanted to insult Charles Krauthammer's disability, I wouldn't have gone to the trouble of changing the sentence.) Anyway, to this special Debater -- who seems to have forgotten to leave his name and number -- I say, thank you. Yours was my very first abusive phone call from a reader. I'm sure over the course of my career, there will be plenty more; that's how things go in this business. But you, anonymous reader, were the first. Cheers!

Posted by: Emily Messner | November 3, 2005 07:59 PM

Thank you, Emily, for hosting a fine blog.
I'm sorry you got an abusive phone call. Everyone makes mistakes and I'm sure there was a thoghtful and gentle way to bring it to your attention.

I hope all bloggers will take care not to be abusive at any time in any way. Political discussions should always be conducted with a large dose of humility. We all believe what we believe, but we should all write with the fact in the back of our minds that can be wrong. This is what makes America great, not the bile and hate that spews forth in our political media of all forms.

BTW, did you know that Krauthammer was both a doctor and a lawyer?

Love to all,

Posted by: Salt | November 3, 2005 08:42 PM

Sorry, typo...what I meant to write was:

"we should all write with the fact in the back of our minds that we can be wrong."

Posted by: Salt | November 3, 2005 08:45 PM

What a shame. This woman is pitiful. She makes me sick to my stomach.

By the way, I would have only seen her insensitivity had I not read the insult on the web. I NEVER EVER read the Washington Post. It is a left wing rag.

Libs call conservative blacks not black enough and want paraplegics to dance. Oh yes...the party of sensitivity. Sensitivity to what? you REALLY wonder what happens at the ballot box?

Emily is crude and cruel.

Shame on her and the Washington Post...oh by the you think we are so stupid that we don't notice a "silent" correction.


Posted by: Dallas | November 3, 2005 09:40 PM


I'm sorry you're so angry.

Did you ever think that you may hurt Emily's feelings? She's just a human being like you trying to do her job and she made a human mistake. Can't you forgive her?

You seem like a miserable person. Please don't tell anyone if you are a conservative.

Love, Salt

Posted by: Salt | November 3, 2005 09:54 PM

"Indeed, if Cleland had dropped a grenade on himself at Fort Dix rather than in Vietnam, he would never have been a U.S. senator in the first place." - Ann Coulter, Feb. 12, 2004.

Limbaugh referred to "a van load of retards" voting for Al Gore via absentee ballot and then said that Gore had "locked up the retard vote." (He later apologized) - November 2, 2000.

And so on. The point is that both sides can say things that may not come out right. They sometimes apologize. Usually they don't. As a Reagan conservative, I thought I'd never see the day where the right was as PC as the Berkeley thought police. Conservatives are supposed to have a sense of humor - and to eschew hypocrisy.

Charles Krauthammer can do touchdown dances all he wants - and I bet he's been popping a few victory wheelies today!

Posted by: LovetheGipper | November 4, 2005 01:19 AM


Nope. no demand for an apology. No question of victims rights. Nope. Just interested in bashing the author.

And just how does one make an audible correction in a newspaper? It is called a footnote. Hey, didn't Emily put one of those in? AND an apology? Huh.

I guess the only thing left unstated was her alleged political bias. Luckily, in your omnicience, you have spelled that out for us. And from just one sentance of one posting. Wow. You can really get to the heart of things.

So, I guess you can tell me my gender, age, occupation, and political bias. I mean, I have written numerous sentances. . .

Posted by: chris | November 4, 2005 04:03 AM

Matt, I am in agreement with you regarding the poster who ridiculously insists that liberals always ground their arguments on emotion while conservatives are more rational and reasoned. That is beyond claptrap.

It sounds as if it comes from someone who listens a good deal to Rush Limbaugh--a fat, sour, frothy bloat who laces his arguments with every emotion based, bile soaked, sputter prone epithet one can possibly imagine, all the while insisting that he deals in the "arena of ideas". The man is ab absolute joke and I would laugh myself silly were it not for the unpleasant reality that he has a large base of braindead dittoheads out there who think in the same hotheaded, undicipline, uncritical way that he does.

Posted by: Jaxas | November 4, 2005 10:39 AM

Can someone explain to me how on one hand Pres Bush can say he believes in a "culture of life" but on the other hand he believes in the death penalty?
If terminating a foetus is MURDER as alot of pro-life activists would have us believe then how come executing minors, which America does, isnt?
Why do men only talk about the "culture of life" when it applies to the female reproductive system?
p.s. i am a man
p.p.s. The best thing to happen for the Dems is for roe.v.wade to be struck down by a conservative s.c. It would alienate the right wing and force indies to the Dems. The more this administration moves to the right, the more room is left in the centre for the Dems. If I were a moderate/fiscal con. republican I'd be looking for a new party right about now.

Posted by: uninformed | November 4, 2005 10:48 AM

Look. Back to basics here. No more culture war rants.

Here is what is most likely to happen assuming Alito is confirmed. He will take his place among 8 other Justices of equally serious and imposing credentials as his own. Cases will come before them. They will argue, debate, review and ultimately decide. But Alito is probably like any other justice who finds himself in institutional awe and in the dawning realization that his decisions can profoundly alter the lives of American citizens for better or for worse.

That sense of awe and the daunting reality of the power they weild is the reason why so many appointees end up disappointing the Presidents and politicians who push them forward. I suspect that Alito, given an opportunity to reverse Roe v. Wade, will demur. Why? Not simply because of precednt and settled law considerations but because of the turmoil, diviseness and, quite frankly political upheaval that might ensue--an upheaval that might doom the republican party's fortunes for decades to come.

And, I do not see Alito reversing past court decisons involving prayer in the schools, religious displays on government property, state sodomy laws, privacy rights, Miranda, gay rights or any of the other culture war hot button issues.

In fact, even with the presence of two stanch conservatives on the Court added to Scalia and Thomas, I predict that everyone is going to be surprised at just how little the status quo actually changes.

Posted by: Jaxas | November 4, 2005 10:56 AM

Salt, Lovethegipper, chris, Jaxas:

At last! Some sense!

To all others who continue to harp about the CK comment (and especially the guy who apparently called Emily at work - I wonder if it was person-to-person or voicemail?),

L E T I T G O ! ! !

We're sick of your disingenuous whining.

I swear there are people who spend all day surfing blogs trying to find any opportunity to be abusive (probably to make up for their own individual miserable lives).

At least Emily fixed the mistake and apologized, which is more - no, much more - than many media folks do nowadays.


P.S. And to anyone who questions Emily's political bias, I reiterate my comment from a few weeks ago, when I remarked on how funny it was that in one post a bunch of lefty tree huggers were berating Emily as being a conservative and in the very next post a bunch of right wing flat-earthers were bearating her for being a liberal! Go figure...

Posted by: Derek | November 4, 2005 11:24 AM

It is a political debate. It involves 'disingenuous' politics. If you can't stand the abusive dialog that our 'individual miserable lives' allegedly create, then don't become involved.

Also, try actually reading posts. You might find that a few of the abused players made the same points as yourself.

Would that make you disingenuous? Or miserable?

Posted by: chris | November 4, 2005 01:37 PM

Just saw this related to taking of private property for private development...The Bush administration, backing the House bill, said in a statement that "private property rights are the bedrock of the nation's economy and enjoy constitutionally protected status. They should also receive an appropriate level of protection by the federal government."

Has the Bush Administration clearly shown that the original intent of the Framers provides this right? Or is it a right that they would like to see instead of say "the right to privacy" or rights against cruel and unusual punishment (I think I've seen that actually written down somewhere but I can't recall where...)

Posted by: rd | November 4, 2005 02:45 PM

I don't remember everyone being mad when Clinton appointed Breyer, A Democratic senate staffer. It is because the Washington Post lives for Teddy Kennedy's approval. They never went after him for his memo that showed he was taking orders from lobbyist to hold up appointments to the 6th circuit because the Michigan affirmative action case was being heard. The idea that people are basing their opinion of Alito on a 14 year old ruling that made sense at the time is the stuff of liberal lunacy. If you poll most AMericans, they will agree that a woman should tell her husband she is about to have an abortion. He can't stop her under the law. Liberals have ruined the family in a such a way men are irrelevant, women are stupid, battered, back alley idiots, and teenage girls can get pregnant and abort at will. Then they look at the jails filled with the children of unwed, teenage mothers whose fathers weren't in their lives. The liberal Utopia: dysfunction.

Posted by: Karen | November 4, 2005 02:58 PM

Can you imagine every taking a history course and not knowing where in the BILL OF RIGHTS private property rights are? How about the Fourth?

Posted by: Karen | November 4, 2005 03:01 PM

I can't believe that a politics writer for the Post would have no idea that Charles Krauthammer is disabled. I thought that was common knowledge. Politics is just an interest for me and not a full time job and even I know that.

Posted by: Brynn | November 5, 2005 07:55 PM

20 Amazing Facts About
Voting in the USA
by Angry Girl

printable version
Did you know....
1. 80% of all votes in America are counted by only two companies: Diebold and ES&S.

2. There is no federal agency with regulatory authority or oversight of the U.S. voting machine industry.

3. The vice-president of Diebold and the president of ES&S are brothers.

4. The chairman and CEO of Diebold is a major Bush campaign organizer and donor who wrote in 2003 that he was "committed to helping Ohio deliver its electoral votes to the president next year."

5. Republican Senator Chuck Hagel used to be chairman of ES&S. He became Senator based on votes counted by ES&S machines.

6. Republican Senator Chuck Hagel, long-connected with the Bush family, was recently caught lying about his ownership of ES&S by the Senate Ethics Committee.

7. Senator Chuck Hagel was on a short list of George W. Bush's vice-presidential candidates.

8. ES&S is the largest voting machine manufacturer in the U.S. and counts almost 60% of all U.S. votes.

9. Diebold's new touch screen voting machines have no paper trail of any votes. In other words, there is no way to verify that the data coming out of the machine is the same as what was legitimately put in by voters.

10. Diebold also makes ATMs, checkout scanners, and ticket machines, all of which log each transaction and can generate a paper trail.

11. Diebold is based in Ohio.

12. Diebold employed 5 convicted felons as consultants and developers to help write the central compiler computer code that counted 50% of the votes in 30 states.,2645,61640,00.html

13. Jeff Dean was Senior Vice-President of Global Election Systems when it was bought by Diebold. Even though he had been convicted of 23 counts of felony theft in the first degree, Jeff Dean was retained as a consultant by Diebold and was largely responsible for programming the optical scanning software now used in most of the United States.

14. Diebold consultant Jeff Dean was convicted of planting back doors in his software and using a "high degree of sophistication" to evade detection over a period of 2 years.

15. None of the international election observers were allowed in the polls in Ohio.

16. California banned the use of Diebold machines because the security was so bad. Despite Diebold's claims that the audit logs could not be hacked, a chimpanzee was able to do it! (See the movie here:,2645,63298,00.html

17. 30% of all U.S. votes are carried out on unverifiable touch screen voting machines with no paper trail.

18. All -- not some -- but all the voting machine errors detected and reported in Florida went in favor of Bush or Republican candidates.,2645,65757,00.html

19. The governor of the state of Florida, Jeb Bush, is the President's brother.

20. Serious voting anomalies in Florida -- again always favoring Bush -- have been mathematically demonstrated and experts are recommending further investigation.,10801,97614,00.html

Posted by: Che | November 6, 2005 04:44 PM

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