JB

The Asia Times wants to know, (link via MaxSpeak) and gives reasons why Cheney is in more trouble than most people think.

Dumping Cheney, however, would probably cause more problems for Bush than keeping him, unless Cheney falls victim to a significant scandal, involving, for example, his former company Halliburton, from which he still receives deferred income.

But Bush is a gambler, and he might try a bold move to split the Democratic coalition in half. The boldest of the bold choices? None other than Condi Rice, the National Security Advisor, who would be the first African-American (and only the second woman) on a national ticket. Take that, Democrats!

JB

I agree with Nick Confessore's observation (also made here) that President Bush's spending policies make perfect sense if you stop thinking of him as a fiscal conservative. Rather, he is a social and religious conservative who also happens to be a very canny politician and who believes in doing whatever is necessary to stay in power. Bush has hit on the perfect formula for doing this: free lunch conservatism:

The key concept is not that Bush is a traditional small-government conservative -- which would involve difficult and politically costly policy trade-offs -- but that he and his party have consistently and unabashedly used the mechanisms of government to reward and enrich key allies, mainly business interests, wealthy individuals, and -- to a lesser extent -- religious conservatives.

Sometimes this has involved traditionally conservative mechanisms, such as cutting taxes or reducing regulation. Sometimes it's involved traditionally liberal methods, such as new government spending. There has been no consistent principle involved, except the determination to stay in power. Nor has there been much attention to the long-term effects of the inherent contradictions in such a policy. So the administration passed a Medicare "reform" that buys off seniors with a drug benefit and hands billions of dollars in subsidies and government spending to HMOs, drug companies, and doctors -- all while specifically prohibiting cost-saving measures like using federal bargaining power to reduce the price of pharmaceuticals. The result is -- all at once -- generous corporate pork; a massive entitlement program; and deregulation. It's a combination that boosts the GOP's ability to stay in power in Washington. But the resulting cost -- ballooning health care costs that in turn will further balloon the deficit -- gets kicked down the road. If a Democrat president is elected to clean up the mess, that's about all he'll be able to accomplish before the next Republican is elected.

But wait, you might object, how can this be good politics? The election of 2004 may turn out to be very close if the economy doesn't recover soon. The key point, as articulated by political scientist William Riker (no, not the Star Trek first officer) many years ago, is that the most efficient way to stay in power is to form a coalition of approximately 51 percent, not 90 percent. The reason is that if you plan to stay in power by distributing money from your enemies to your allies, you want to give your allies as much as you can to keep them on your side. The spoils of power must be spread more thinly the larger your coalition gets, but you can lay it on thicker if your coalition is smaller. The sweet spot is a coalition of exactly 51 percent. Conversely, the smaller your opposition, the less resources they have to bleed that you can distribute to your allies; so you don't want them too small. The magic number for your opponents, it turns out is 49 percent.

Does this sound familiar? A recent New York Times op-ed by former Al Gore speech writer Daniel Pink showed that the majority of Bush Red states were net recipients of federal largesse, while the majority of Gore Blue states were net givers. Bush has formed a coalition of states that mostly suckle at the national teat, paid for disproportionately by his political adversaries, states that vote Democratic.

I know that many liberals and progressives like to comfort themselves with the notion that President Bush is not very intelligent. This continues to be the most dangerous myth about the man. He is, in fact, quite shrewd and cunning. He's just not interested in public policy debates. (Remember, there's more than one way to possess intelligence.) The term "Mayberry Machiavelli" is entirely apt, although I suspect that for many lefties the use of the term "Mayberry" suggests that he is a dumbed down version who isn't quite as smart as he thinks he is. This is, I repeat, a dangerous delusion. George W. Bush is a political animal par excellence. Liberals and progressives argue that he can't be very smart because his policies are so stupid. But what they don't understand is that Bush is not particularly interested in good policy in their sense of the word; good policy is always secondary to staying in power. The policies he has adopted make sense if you start with the assumption that he wants to cement a durable 51 percent majority coalition using federal pork and redistributive programs as a central ingredient.

Recently David Bernstein of the Volokh Conspiracy wondered aloud why liberals don't like George W. Bush more since it seems clear that he likes to spend lots of government money, particularly on programs like education and drug benefits that liberals should like. The answer by now should be clear: George W. Bush doesn't like to spend government money in ways that liberals think are wise and good for the country's long term interests. (For example, liberal Dems tend to think that No Child Left Behind is underfunded and uses the wrong incentives, while the recent Medicare bill has too much privitization and will shift too much money to drug and insurance companies) Rather, Bush likes to spend lots of money (and redistribute lots of money from liberal states) in ways that satisfy core Republican constituencies and help keep him and the Republican party in power.

From the standpoint of pure power politics, the objection to Bush's strategy is whether he can keep it going long enough to get reelected and, if reelected, whether the Republicans will be punished in the 2008 and 2012 elections when the bill starts to come due. Most liberals who fulminate about these unwise policies believe that eventually the Republicans will be punished. But I am not so sure. Bush may be counting on the fact that no one will remember that the fiscal crisis of 2008 or 2012 is largely his fault, just as Reagan does not get enough blame for his huge deficits and deregulatory policies that helped foster the huge S&L scandal later on. Moreover, Bush may be counting on the fact that even if the Democrats are returned to office for a short time, they will find themselves largely devoted to acting like adults and cleaning up the mess Bush has created. The fiscal discipline required will not be popular, and thus it will not help them form a majority coalition through spending in the way that Bush has done. Thus, Bush may believe that he and his party will escape most of the blame for any fiscal problems his policies create down the road because (1) the public's memory is short, (2) the Democrats will be prohibited from making any new spending initiatives that would gain them a new majority coalition because of the huge deficits Bush has created, and (3) the image of the Republicans as the party of fiscal discipline will remain firmly ingrained in the public's imagination.

Many liberals have believed that Bush's deficits are designed to "starve the beast," i.e., to prevent the Democrats from spending money on egalitarian social and economic programs. What they have not sufficiently considered is that the "starve the beast" approach has another goal besides the promotion of an anti-New Deal/Great Society ideology. It seeks to keep the opposition from using the public purse in the future to create their own 51 percent coalition in the same way that Bush is now soaking (mostly) Blue states to pay (mostly) Red states. If you stop thinking about what Bush is doing in terms of ideology and start thinking about his actions in terms of pure power and how to maintain it, he doesn't seem so stupid after all. The Democrats fail to understand this at their peril.

JB

Jacob Levy has a fun post on the question of how to pronounce "Missouri." Is it Missouree or Missourah?

I grew up in Kansas City, Missouri, and everyone I knew always pronounced it Missouree. Only people from Cape Girardeau in the southeast pronounced it Missourah. (Other people, by the way, swear that only people in the southwest say Missourah).

There was, however, one major exception to this rule:

During campaign season, when politicians wanted to engage in a little faux populism, they would sometimes affect a bit more of a drawl and say Missourah.

This was their way of showing that they were in touch with the people. But I have to confess that whenever I heard a politician do that, I always wished that they would just support policies that were good for the average citizen and pronounce the name of the State any way they wanted.

JB

On March 18, 2003, on Good Morning America, Fox News political commentator Bill O'Reilly made the following promise:

"Here's, here's the bottom line on this for every American and everybody in the world, nobody knows for sure, all right? We don't know what he has. We think he has 8,500 liters of anthrax. But let's see. But there's a doubt on both sides. And I said on my program, if, if the Americans go in and overthrow Saddam Hussein and it's clean, he has nothing, I will apologize to the nation, and I will not trust the Bush Administration again, all right? But I'm giving my government the benefit of the doubt."

He made a similar claim in this interview with Condoleeza Rice:

Last March, I stuck up for you guys. After Colin Powell (search) went to the United Nations -- and I said on "Good Morning America" that I believed that we were right to go to war, the United States, based upon weapons of mass destruction and the danger that Saddam posed. And I also said to "Good Morning America" if the weapons found to be bogus, I'd have to apologize for my stance.

Now that David Kay has confirmed that Saddam destroyed his WMD's long before the invasion, O'Reilly has not apologized or confessed that he no longer trusts the Bush Administration. Rather, he has argued that the Bush Administration was hoodwinked by the CIA's lax intelligence gathering into believing that the WMD's were real and therefore the President should investigate the reason why this occured. Because of the intelligence failure, Bush cannot be said to have lied to the American public.

Unfortunately, O'Reilly's argument overlooks the fact that the Administration cherrypicked CIA reports to hear what they wanted to hear, and conveyed this information to the American public, and in some cases relied on questionable or completely bogus information that they knew was unreliable in order to justify repeated statements to the American people that Saddam was creating WMD's-- including nuclear weapons. So O'Reilly's portrait of the Bush Administration as having been completely hoodwinked by the CIA and having made all of these representations to the country through no fault of their own is simply not plausible.

O'Reilly should apologize as he promised. He should criticize the President for hyping the intelligence sources and relying on information he should have known was unreliable. Even if Bush did not lie, he seriously misled the public. O'Reilly needs to confront that fact.

Nevertheless, O'Reilly does come out strongly in favor of having the President publicly admit that there was a mistake and publicly investigate the causes of the intelligence failure, something which the Bush Administration has so far been unwilling to do. Indeed, Administration officials have tried to bluff their way through the problem. Dick Cheney has brazenly insisted that the WMD's are there after all, while the President has been reduced to talking about the existence of "weapons of mass destruction related program activities." (Does the President really think he's fooling anyone when he talks like that?)

And in the following interview with Clifford May, president of the Foundation for the Defense of Democracies, O'Reilly bluntly tells conservative defenders of the President to stop making excuses and that there must be some public accountability in light of the Kay report:

O'REILLY: [H]ere is the problem. We live in a republic where the people are supposed to decide crucial issues, all right? And the people can't decide the issue if they're given erroneous information. And the Bush administration gave us erroneous information, not because they lied, but because they got erroneous information from the Central Intelligence Agency. And I believe President Bush hasn't been nearly aggressive enough in holding those people in the agency accountable.

MAY: I think we need to totally refurbish the CIA. The question is whether George Tenet, who served Clinton, served Bush, is the best man to do it. And if somebody thinks not in the Democratic party, they should say what they're going to do the about it.

O'REILLY: Well, what about Bush, though? Why isn't he doing it now? He knows the 9- 11 situation better than anyone on the planet. . . .

. . . And he knows this is a screw-up.

MAY: His marching orders to George Tenet ought to be, we need to do - - overhaul the CIA so they can do the kind of intelligence gathering we need. . . . the most important thing to understand, it seems to me is this. Saddam Hussein was himself a weapon of mass destruction.

O'REILLY: No, that's baloney. That is right-wing spin. And a guy as smart as you, I don't want to hear you say that.

MAY: No, no, no, no.

O'REILLY: I don't want to hear you say that right-wing talking point business. Look, let's get back to the issue here.

. . . The Americans can decide for themselves whether that policy was good for America or not. But we got hurt overseas. We still hurt overseas. This Colin Powell went to the U.N., put this big WMD scenario in play. And it turned out not to be true. Our image overseas is hurt. OK?
. . . .

O'REILLY: But here's the fundamental constitutional question. All right? You have an administration, which is closed. The Bush administration is not open with the folks. Everybody knows that. All right? Now you have, and I believe this report, and I've got to say, I will say this in President Bush's defense, President Bush could have booted this. He could have said to Kay, hey, find something and this and that. He wanted the truth. He told Kay, even if it's black and bad and going to hurt me, you get it. I think we all -- that reflects very, very well on the president, but he's got to now step up. And he's got to admit the mistake. And he's got to take strong action to protect us, Mr. May.
. . .

O'REILLY: That's right. But we also need openness on the part of the president. And he can't be sitting up in the White House not saying anything about it.

I still think O'Reilly should apologize. But I think that he is starting to get it. The problem is that this President does not like to be open or honest with the American people on any number of issues, including Iraq. And his Administration never likes to admit that it has ever made a mistake: The Washington Post reports that at a recent "private meeting between Bush and congressional leaders," Bush and Tom Daschle had what sources described as a "testy exchange" when Daschle dared to suggest that "it is important to determine what went wrong to produce the flawed prewar weapons charges." Acting like a petulant child when someone shows real flaws in your decisionmaking process is not leadership.

JB

An article in today's Washington Post and a longer story in the Atlantic Monthly explain why (links via Atrios): The Bush Administration refused to listen to contingency planners, shut out or stepped on people who told them unpleasant truths, and promoted people who told them what they wanted to hear.

JB

Earlier I noted that Bush's 1970's service record is less important than what he is doing today, for example, in stonewalling and hampering the 9/11 Commission's work. Nevertheless, I have to agree that Jonathan Chait is probably right when he says that the media have applied a double standard and given Bush too much slack on the fact that he didn't show up for National Guard service during 1972 and 1973.

Consider this bizarre passage in a recent New York Times article focusing on slip ups by General Wesley Clark:

But General Clark has spent much of his time here explaining controversial statements. Perhaps most damaging has been his failure to repudiate comments by Mr. Moore, who called Mr. Bush a deserter for his unexplained absence from the Air National Guard between April 1972 and September 1973.

Mr. Bush's actions did not meet the technical definition of desertion.

"President Bush was not a deserter," said Eugene Fidell, a Washington expert on military law. "To desert in wartime is a serious offense, potentially punishable by death. It requires an intent to remain away permanently."

The article is trying to show that Moore's statement was technically inaccurate as a matter of military law and an exaggeration. But in doing so, it certainly makes one think "well, why was his absence unexplained?" So he's not technically a deserter. Well, so what? Being able to say that you were "not technically a deserter" is not exactly a badge of honor. And yet there's no hint in this story that any of this might be a problem for the Commander-in-Chief.

Although to my knowledge George W. Bush was not ever formally charged with being AWOL (absent without leave, which is different from being a deserter), you don't have to be formally charged to be in violation of military regulations that prohibit skipping out on military service. Why didn't the press make more of it in 2000? Perhaps it was because foreign policy wasn't a big issue in that election (although you may recall that one of Bush's campaign themes that year was strengthening the military). In any case, given that the President has shown little compunction about sending American troops into dangerous combat situations, it certainly seems worth a look today. Let me put it this way: If any of the Democratic candidates (or Bill Clinton for that matter) was thought to have skipped out on months of military service, the press would be all over it.

UPDATE: Paul Waldman compares media treatment of Clinton in 1992 and Bush in 2000.

And in the interests of fairness to George W. Bush, here is the New York Times story from November 3rd, 2000 which criticized the Boston Globe story that originally raised the allegations. Although it does not completely rebut the Globe story, it does argue that some of the Globe's concerns may be unfounded. Clearly one has to take this story into account in assessing the seriousness of the allegations made against Bush:

Two Democratic senators today called on Gov. George W. Bush to release his full military record to resolve doubts raised by a newspaper about whether he reported for required drills when he was in the Air National Guard in 1972 and 1973.

But a review of records by The New York Times indicated that some of those concerns may be unfounded. Documents reviewed by The Times showed that Mr. Bush served in at least 9 of the 17 months in question.

Dan Bartlett, a Bush spokesman, said that Mr. Bush had fulfilled his military obligations "or he would not have been honorably discharged."

The senators, Daniel K. Inouye of Hawaii and Bob Kerrey of Nebraska, both Medal of Honor winners, were responding, in a telephone conference with reporters, to an article in The Boston Globe on Tuesday.

The article, citing military records for Mr. Bush, raised questions about whether Mr. Bush performed any duty from April 1972 until September 1973, when he entered Harvard Business School.

A review by The Times showed that after a seven-month gap, he appeared for duty in late November 1972 at least through July 1973.

Mr. Bush was assigned to the 111th Fighter-Interceptor Squadron at Ellington Air Force Base near Houston, from November 1969, last flying there on April 16, 1972.

In a report dated May 26, 1972, his commander, Maj. William D. Harris Jr., said Mr. Bush had "recently accepted the position as campaign manager for a candidate for the United States Senate."

Mr. Bush went to work for Winton M. Blount a few days after Mr. Blount won the Republican primary in Alabama on May 2, 1972.

From that time until after the election that November, Mr. Bush did not appear for duty, even after being told to report for training with an Alabama unit in October and November.

Mr. Bartlett said Mr. Bush had been too busy with the campaign to report in those months but made up the time later.

On Sept. 5, 1972, Mr. Bush asked his Texas Air National Guard superiors for assignment to the 187th Tactical Recon Group in Montgomery "for the months of September, October and November."

Capt. Kenneth K. Lott, chief of the personnel branch of the 187th Tactical Recon Group, told the Texas commanders that training in September had already occurred but that more training was scheduled for Oct. 7 and 8 and Nov. 4 and 5. But Mr. Bartlett said Mr. Bush did not serve on those dates because he was involved in the Senate campaign, but he made up those dates later.

Colonel Turnipseed, who retired as a general, said in an interview that regulations allowed Guard members to miss duty as long as it was made up within the same quarter.

Mr. Bartlett pointed to a document in Mr. Bush's military records that showed credit for four days of duty ending Nov. 29 and for eight days ending Dec. 14, 1972, and, after he moved back to Houston, on dates in January, April and May.

The May dates correlated with orders sent to Mr. Bush at his Houston apartment on April 23, 1973, in which Sgt. Billy B. Lamar told Mr. Bush to report for active duty on May 1-3 and May 8-10.

Another document showed that Mr. Bush served at various times from May 29, 1973, through July 30, 1973, a period of time questioned by The Globe.

JB

This is a follow up to my previous post on Internet speech.

The New York Times ran a provocative article today noting the familiar claims that the Internet divides people, and prevents democratic deliberation:

The Internet became the ultimate tool for finding like minds and blocking out others long before supporters of candidates began seeking one another out on Meetup.com. With online dating sites where searches can be tailored by age and income, e-mail forums for the most narrow band of subjects, bookmarked sites and even spam filters, the Web allows users to tailor the information they consume more than any other medium. Social scientists even have a term for it: cyberbalkanization.

The article runs together two different kinds of democratic activities: One is organizing followers for a political campaign, where you want people of like minds to get together, the other is engaging in democratic discussion about public issues with people who may disagree (and disagree strongly) with you. These two activities are part of democracy, *but they are not the same activity.* Both are necessary, but it is often difficult to do both at the same time.

As the key examples of the trend toward cyberbalkanization on the Internet (I love that word, for obvious reasons) the article points to sites like Wesley Clark's website, Clark04.com, Meetup.com, and MoveOn.org. The problem with these sites, the article suggests is that people only want talk to people who think the way they do, and people who have different views are shunned.

That may well be the case, but these websites are being used for *political organizing* of like minded people, so this is to be expected. It does not prove the claim that online deliberation is rapidly becoming fractured and that "the Internet is in danger of narrowing the spectrum of debate." What it shows is that the Internet can be used for and is quite good at bringing like minded people together. And if you look at the way sites like Meetup.com and MoveOn.org are designed, you can see that they are designed for this purpose.

It certainly does not follow, however, that Internet sites do not promote discussion among people with different views, or that sites can't be designed to facilitate this purpose. I've already spoken about how weblogs facilitate exposure to a variety of sources in my previous posting. The argument the article is making is somewhat like saying that automobiles are bad for families because you can't seat more than two people in them comfortably, and then offering as your key examples sports cars. Sports cars are not designed for families; that's why we have station wagons.

The key point is that the Internet is protean. It does not have to be any particular way, and different combinations of code can facilitate different forms of democratic activity better than others. Weblogs-- in conjunction with other technologies that allow you to see who is linking to you-- are a good example of a code that is structured to promote discussion of public issues, even if the discussion is often quite heated.

At one point the article does refer to blogs, but in a misleading and potentially self-contradictory way:

Blogs - or Web journals - are also more about monologue than discussion. President Bush's re-election campaign blog, for instance, does not include a largely standard feature that most online journals have: the ability for readers to reply to the posts.

Note that in this passage the one example given of a blog is distinguished from "most online journals" on the grounds that it does not have a comments section. This sentence is quite misleading to people who don't know anything about the blogosphere. Blogs are online journals. Some blogs have comments sections, others don't. Kos and Atrios have comments sections, this blog and Instapundit do not. President Bush's campaign reelection blog is not a very good example of the form, and it is a terrible example if you want to understand how democratic discussion online occurs.

Perhaps more important, it is deeply mistaken to infer from the fact that some blogs don't have comments sections that the blogosphere is monologic. As I noted in my previous post, individual blogs link to each other and comment on each other all the time, just as they link to and comment on stories from the mass media. That is precisely what I am doing right now. The practice of linking and commenting is the most characteristic feature of democratic deliberation in the blogosphere. Comments sections help that, but they are not necessary. Tools like Site meter and Technorati allow bloggers to discover who is talking about them and responding to them and what they are saying. The claim that blogs are "more about monologue than discussion" is exploded by even a casual acquaintance with what it means to operate a weblog devoted to the discussion of political issues.

I must also note that the article quotes only people who believe that the Internet technology is bad for democratic discussion. In particular, the article highlights Cass Sunstein's arguments in Republic.com, which, as I noted in my previous post, were technologically naive. In this way, ironically, this newspaper article enacts the very thing it accuses the Internet of: listening to and presenting the views only of people who share one point of view.

Unfortunately, this article continues a meme that I have often found among progressive people-- that the Internet is bad for democracy. I think that this view is deeply mistaken. The Internet has its strengths and weaknesses, just like the traditional mass media have. The question is not whether the Internet is good or is bad for democracy. The key question is how the Internet changes the ways that democratic activities of organization, discussion, protest, and decisionmaking occur, and how the code of the Internet can be altered in different ways and different contexts to promote these different forms of democratic activity.

JB

Several people in the blogosphere are upset that the media have given George W. Bush a pass on stories indicating that he was AWOL when he was supposed to be serving in the Texas National Guard.

Quite frankly, I'm much more upset that the press is giving Bush a pass on his repeated attempts to stonewall and derail the investigations of the bipartisan commission on 9/11, and to keep any report that might be critical of the Administration secret until after the November elections.

The story about Bush being AWOL tends to prove only that he's a hypocrite, something which many people already suspected. The stonewalling of the 9/11 commission, however, raises much more serious questions about how democracy is supposed to function. The point of regular elections is to hold government officials accountable for their mistakes. Letting officials hide potentially damaging information about their actions with impunity undercuts the premises of democratic government. Where is the media on this one?

Particularly because the election of 2000 was hotly disputed, Bush's legitimacy as president stems from his ability to rally the country in the wake of 9/11. It would be ironic indeed if that event was caused in part by the negligence of his own officials. The public has a right to know if anything like that is the case, and they have a right to know it before the November elections.

JB

Eugene Volokh has been concerned that the Federal Marriage Amendment, which I've discussed in a previous post, has a decent shot at passage. I don't think there is a very good chance at all. Let me explain why.

Article V was designed to make it very difficult to amend the Constitution. If you compare the number of bills that have become federal law (endless) with the number of amendments that have been enacted (27, and some would say only 26), you will see that the requirement of a two thirds majority of both Houses of Congress plus three quarters of the states makes a big difference. Note as well that 10 of the 27 amendments were virtually contemporaneous with ratification and were part of the price of ratification. Three more were the result of a Civil War. So if you take those thirteen away, you get only 14 amendments during periods of relatively normal politics in 216 years of the Constitution's history. Most constitutional change has occurred through Article III, not Article V. One reason why courts make constitutional law in the way that they do is because our Constitution is so difficult to amend. Judicial review (as we have it today, not as it was originally imagined) is an institutional alternative to Article V amendment.

But I digress. The requirement of two thirds plus three fourths is even more stringent than it first looks. For an amendment can fail if one third plus one of either the Senators or Congressmen oppose it. It can also fail if one house of the state legislature in 13 states fails to ratify. Nebraska has a unicameral legislature-- all the rest of the States require the concurrence of both the House and the Senate in order to ratify. Thus, counting Nebraska, there are 99 state legislative houses. (49 x 2 plus 1). If only 13 of these houses (in 13 separate states) fail to ratify, the amendment fails.

When you put it this way, it's a wonder that any constitutional amendments ever pass at all. Because of the many veto points in the amendment process, it takes overwhelming public support for an amendment before it can be ratified. So even if we see polls showing that 55 percent of Americans are opposed to gay marriage, that does not necessarily translate into two thirds support in both the House and the Senate. And it certainly does not mean that there will not be 13 states where one or the other house does not support the proposed amendment. I would wager that for the FMA to pass, there would have to be 70 to 80 percent support in public opinion polls. I don't think there is that degree of support.

There is one final consideration that I think strongly suggests that the FMA will never be ratified: Mores change over time. Although court decisions protecting homosexual rights usually produce temporary spikes of opposition, the long term trend is toward increasing acceptance of homosexuality in the United States. As time goes on, public discomfort with the idea of same-sex marriage will almost certainly decrease, and support for the amendment will become increasingly lukewarm. Moreover, although there are exceptions, the younger the age cohort polled, the more tolerant the group is toward homosexuality. As older people die off and are replaced with socially more tolerant ones, the trend toward acceptance is likely to increase. That means that time to pass something like the FMA is now. The longer the proponents wait, the fewer Americans will think it is a good idea.

All this could change if the Supreme Court of the United States were to hold that the U.S. Constitution requires that states must award marriage licenses to same sex couples. But that is not going to happen anytime soon. Instead, my prediction is that the question of same-sex marriage will be worked out at the state level for years to come.

JB

David Kay, head of the Iraq Survey Group, an arms inspection team has concluded that Iraq had gotten rid of its WMD's years before the war began, the New York Times reports:

David Kay, who led the American effort to find banned weapons in Iraq, said Friday after stepping down from his post that he has concluded that Iraq had no stockpiles of chemical and biological weapons at the start of the war last year.

In an interview with Reuters, Dr. Kay said he now thought that Iraq had illicit weapons at the end of the 1991 Persian Gulf war, but that the subsequent combination of United Nations inspections and Iraq's own decisions "got rid of them."
. . .

Scott McClellan, the White House spokesman, said the administration stood by its previous assessments that Mr. Hussein had both weapons programs and stores of banned weapons.

"Yes, we believe he had them, and yes we believe they will be found," Mr. McClellan said. "We believe the truth will come out."

With Dr. Kay's departure, the administration on Friday handed over the weapons search to Charles A. Duelfer, a former United Nations weapons inspector who has expressed skepticism that the United States and its allies would find any banned chemicals or biological agents.

At some point, the Administration is going to have to fess up. The only question is when.

JB

On January 10th, Balkinization celebrated its one year anniversary. That is when the blog began; my first substantive post was not until January 13th. In this posting, and a few later ones, I hope to share some of the things I learned about blogging and Internet speech generally from my experience as a blogger.

The development of the blogosphere mitigates, to a considerable degree, two key concerns about freedom of speech on the Internet. University of Chicago legal scholar Cass Sunstein made both of these points eloquently in his book Republic.com. The first concern was that the public sphere would become fragmented because there were so many speakers, no common sources that everyone was exposed to, and new filtering technologies allowed people to filter out the speech they did not like and only read the topics and opinions that interested them. The second concern was that people would become increasingly extreme in their views because there is no Internet equivalent to the fairness doctrine. Liberals would listen only to liberals, conservatives would listen only to conservatives, and the resulting ideological division would produce ideological polarization with increasingly extreme positions, further fracturing the public sphere and preventing democratic deliberation. For this reason, Sunstein at one point suggested requiring people with websites to include links to people with contrary views, or, if that posed constitutional difficulties (it would) at the least giving tax or other incentives for people to add links to others. Sunstein imagined a sort of Fairness Doctrine in Cyberspace. When it was pointed out that Cass didn't have any such links on his own site, he promptly placed a link to Richard Epstein and Catharine Mackinnon on his home page.

In hindsight, both of Sunstein's concerns about freedom of speech seem overstated and his proposed remedy seems not only ineffectual but beside the point because it misunderstood how the Internet differs from traditional mass media. The development of the blogosphere helps us see why this is so.

Let me preface my remarks by noting the obvious: Not all political speech on the Internet occurs through blogs or though technologies similar to blogs. But a very significant amount does. Indeed, I'd say that the blog and its cousins (including threaded discussions and comments sections on political websites that allow for links) are the most characteristic form of Internet political commentary. So paying attention to the blogosphere tells you a lot about how the public sphere is actually playing out on the Internet.

Sunstein assumed that speakers on the Internet would in some respects be like radio and television broadcasters who could simply deny access to viewpoints they did not agree with. That is why he wanted to transpose the Fairness Doctrine into cyberspace. That is why he put links to Epstein and MacKinnon on his own website. He was working with the paradigm of broadcast television, a unidirectional non-interactive and non-participatory mass medium in which it is relatively easy to exclude speakers.

But most bloggers who write about political subjects cannot avoid addressing (and, more importantly, linking to) arguments made by people with different views. The reason is that much of the blogosphere is devoted to criticizing what other people have to say. It's hard to argue with what the folks at National Review Online or Salon are saying unless you go read their articles, and, in writing a post about them, you will almost always either quote or link to the article, or both. Ditto for people who criticize Glenn Reynolds, Andrew Sullivan, or Kos, or Atrios. If you don't like what Glenn said about Iraq, you quote a bit of his posting, link to it, and then make fun of him. These links are the most important way that people travel on the Web from one view to its opposite. (And linking also produces a good check on criticism because you can actually go and read what the person being criticized has said.).

In addition, most bloggers have blogrolls which include a wide variety of different sources with very different ideological views. If you check my blogroll, you will see that it contains both lefties and righties, and among the righties, a fair dose of libertarians like my favorite freedom loving gang at the Volokh Conspiracy. Because I am a lefty, I probably have more lefties than righties on that blogroll, but what's important is not whether there's a perfectly proportional distribution but whether there's a substantial variety of different views. There is, and I would wager that my blogroll is not at all unusual in that respect. The customs of the blogosphere produce this pluralism.

Nevertheless, one might object, this argument is premised on the idea that the blogosphere has customs of linking that encourage give and take. What is to guarantee that these customs will continue? Obviously bloggers could give up their customs, and stop linking to each other. But I doubt this will happen; the customs make sense given the way the technology works. And worrying about whether people will or won't continue to link absent a government regulatory apparatus that encourages linking completely misses the point about how Internet speech works: The fact that these customs developed says a lot about the health and vibrancy and pluralism of the public sphere in cyberspace. What is perhaps equally important is that the production of these customs of cross linking was spurred on not by an initial government requirement or a program of tax incentives, but by the design of weblogs themselves. Here is a key example in which architecture matters greatly to the production of a more democratic culture on the Internet. What we should be worrying about is not government programs but the government of programmers. We should be applauding and promoting Internet technologies like blogs that promote interactivity, participation and give and take.

The other fear often expressed is that Internet speech will become more extreme. There is a lot of extreme speech on the Internet. And there is a lot of personal invective, too. The Internet is not a debating society held in the Senior Common Room. It is often quite raucous and unpleasant. But the reason for this is *not* the group polarization mechanism Sunstein is concerned with-- the notion that people of different views aren't talking to each other so they gravitate to increasingly extreme positions. The reason why Internet speech is often sharp and unpleasant comes from the fact that people are talking to each other but are *distanced* from each other. It's very different saying something nasty to someone in a blog posting and saying the same thing to their face. (It's even easier to be nasty when one is anonymous, but even non-anonymous postings on the Internet give people greater license to vent than in-person interactions.).

Even if Internet speech has its share of heated and unpleasant exchanges, the blogosphere has also shown, I think, that fears of group polarization produced by the Internet are overstated. It's important to distinguish distribution of viewpoints from polarization of viewpoints. The Internet allows for a much wider distribution of ideas to be expressed than in the traditional unidirectional mass media, but that is not the same as increasing group polarization. Indeed, wider distribution along multiple dimensions is the opposite of polarization, which is an increasingly tight bimodal distribution along a single dimension.

We should also distinguish extremism among relatively small groups (like neo-Nazis) from society-wide group polarization. The Internet does allow like-minded people with extreme views to find each other. But that is not the same thing as group polarization in the Internet as a whole. If the concern is that *a small group of people* with extreme views will be able to meet others of similar views on the Internet and that their views will become even more extreme in the process, that may well occur. In that case, however, what you are really worried about is that people with extreme views might find each other in the first place and recruit other impressionable people, and preventing *that*, I would submit, is a blatantly unconstitutional goal. If the concern, on the other hand, is that *society as a whole* will become more polarized as a result of Internet speech, I think the fears are greatly overstated. The blogosphere continually provides a check on people's more extreme claims. It continually throws people together who have clashing views. Its architecture allows a wide dispersion of views to contend, a phenomenon which should not be confused either with an echo chamber or with group polarization.

I'm not trying to be a Polyanna here. I'm not claiming that no group polarization effects could ever occur on the Internet, or that Internet speech is necessarily going to make the world a better, safer place for democracy and/or reasoned discussion. What I am claiming is that fears that the Internet was going to produce a significantly greater tendency toward group polarization seems wrong. I think, in fact, that people's fears and anxieties about loss of control over the traditional public sphere governed by mass media have been projected onto the Internet.

A final concern that Sunstein raised is the loss of a common public culture-- and in particular a common culture for discussion of public issues. This was supposed to be caused by two factors: (1) the proliferation of Internet sites so that there are no common sources of news and opinion; and (2) the possibility that large numbers of people will tailor their news through the use of various filters. These fears, too seem to me to be greatly overstated, and for two reasons. First, the tailoring of news based on subject matters (sports, gardening, fashion) occurred long ago in the traditional mass media, and the tailoring of news for particular ideological constituencies does not seem to have developed on the Internet in the way that Sunstein imagined. We now have a conservative news network, Fox News, but Fox is not a website; it is a cable channel. We cannot blame the Internet for Fox News. More to the point, the sources from which Internet news feeds are drawn still seem to be dominated by a relatively small number of traditional mass media corporations, including AP, UPI, Fox, CNN, and the major networks and newspapers.

It is important to distinguish news commentary from news sources. *Commentary* on news comes from all over the place, but the actual *production* of news and the work of reporting and journalism by news organizations seems still to be relatively constricted. Economies of scale are the most likely reason. There are lots of bloggers who write commentary, but very few bloggers that go out and report their own stories. That may change in time, but there is reason to believe that economies of scale in journalism are not temporary. Thus, Internet speech does not seem to have displaced mass media organizations as a *source* of the vast majority of news reporting; rather it has used the mass media as a substrate; it gloms onto the mass media and uses it as a source for commentary, while mass media organizations like CBS, the New York Times, and Reuters run websites and provide news feeds that provide the Internet and its commentators with grist for their mills.

In sum, people who want to read only conservative commentaries on the news can easily do so, but for reasons having to do with how journalism is produced the Internet has not yet produced the widespread adoption of a "Daily Me" that blocks out everything extraneous to our ideological interests. The closest thing (in the view of many liberals) is Fox News, but that development is not, as I have noted before, something for which the Internet can be blamed.

The second reason why the fears of the fracturing of the public sphere seem overstated is the nature of network topologies. The Internet, and in particular, the blogosphere, has a scale free topology. As the Internet expands, and more links are added, a larger proportion of links are made to a relatively small number of sites. The result is that, over time, a relatively small number of sites receive the lion's share of links. They are hubs in the network that forms the Internet's public sphere. Go to The Truth Laid Bear and look at the blogosphere ecosystem and traffic rankings and you will see what I mean. A handful of blogs have an enormous number of links to them and a considerable amount of traffic, and as you go down the list, the number of links and amount of traffic rapidly diminishes after the first dozen or so sites, until you get to a fairly flat curve.

As long as the Internet, and in particular, that portion of the Internet where people get their news, has a scale free topology, Sunstein's fear of an unacceptably fractured public sphere is overstated. Indeed, the problem may be precisely the opposite of the one he imagines: A relative handful of news sites, or a relative handful of bloggers may have a very large amount of power over public opinion because they are the key hubs or nodes in the network of Internet public opinion. That, in some ways, is similar to (although not identical with) the condition we had with the traditional mass media. While the dominance of the traditional mass media in the public sphere was created by government's control over the air waves (in the case of radio and television) and economies of scale and the effects of local advertising (in the case of newspapers), the dominance of a small number of hubs or nodes in the public sphere on the Internet is caused by power laws that apply to certain types of communications networks, of which the Internet is a particularly salient example. To be sure, the concentration of influence over public opinion on the Internet is much less than we had in the traditional mass media. But is not at all clear to me that this is necessarily a bad thing.

JB

The Boston Globe reports that spying on Democratic Senators' internal memos concerning judicial appointments was extensive:

Republican staff members of the US Senate Judiciary Commitee infiltrated opposition computer files for a year, monitoring secret strategy memos and periodically passing on copies to the media, Senate officials told The Globe.

From the spring of 2002 until at least April 2003, members of the GOP committee staff exploited a computer glitch that allowed them to access restricted Democratic communications without a password. Trolling through hundreds of memos, they were able to read talking points and accounts of private meetings discussing which judicial nominees Democrats would fight -- and with what tactics.

Didn't one political party try to break into the other's national headquarters about thirty years ago, back in 1972? Which political party was that again?

JB

The media are piling on Howard Dean for his passionate speech (and yelp) following his third place finish in Iowa. The San Diego Union Tribune sums up the conventional wisdom. I haven't picked a favorite candidate among the Democrats yet, but I think Dean's being treated shabbily. I remember how the press turned on Edmund Muskie in 1972 after he was said to be crying after someone attacked his wife. Muskie would have been a fine president, at least as good as Richard Nixon turned out to be in his second term. I thought that was unfair then, and I think this is unfair now. Dean, to be sure, is a very different kind of person than Muskie-- one can't imagine Dean as secretary of state, for example. But there are many kinds of successful presidents. I suspect the reason why we are getting the piling on is a combination of different factors and different interests, including the other candidates' desire to sink the person with the most money, the press's desire to make the Democratic nomination a genuine horse race, and the talk shows' discovery of a funny and effective way to portray Dean in a few broad strokes.

In 2000, the talk shows (and Saturday Night Live) portrayed Bush as well meaning but stupid and Gore as a robot. Both of these portrayals turned out to be inaccurate, particularly the portrayal of Bush, who has shown himself to be neither well-meaning nor stupid. On the contrary, for anyone with eyes to see, Bush proven himself to be ruthless, vindictive, and cunning. That is one reason why he has done so well.

UPDATE: The Miami Herald's Jim Morin puts things in perspective.

JB

Richard Perle and former Bush speechwriter David Frum have a very strange op-ed in today's New York Times. The argument is that none of the Democratic candidates gets what President Bush gets: "that we would not distinguish between the terrorists and the states that harbor them." According to Perle and Frum, "[]t]his is a point Mr. Bush has held steadfastly to from [the September 11th attacks] through last night's State of the Union address. And he is right: no longer can we afford to hunt down individual terrorists while leaving the states that sheltered them unmolested."

But then Perle and Frum go on to note that in their opinon the most salient example of a nation harboring or encouraging terrorism within its borders is Saudi Arabia:

Rather, we must prevail on the Saudis to stop financing the extremism that breeds holy warriors, young men willing to die in order to realize their vision of an Islamist universe. The United States is the main obstacle to this extremist vision, which is why we are engaged in a war on terrorism.

If the Democrats are serious about their stated analyses of the terrorist threat, then they need to tell America their plan to destroy the terrorists and change the policies — or, if necessary, the regimes — of the states that support them. In addition, they need to propose a policy toward Saudi Arabia equal to the magnitude of the Saudi problem. Such a policy would be based on this direct challenge: either the Saudis put an end to the direct flow of money from the kingdom to extremist organizations or else the United States will no longer have an interest in the continued tenure of the present regime.

Can the Democrats credibly convey this message to the Saudis? Will they fight terrorism rather than chase terrorists? These are tests that they have thus far refused to take

Could it be that Perle and Frum have different standards of consistency for Republicans and Democrats? Nah, couldn't be.

JB

The Nation is wondering out loud whether a French investigation into bribery of Nigerian officials by Halliburton will lead to an indictment of Vice-President Dick Cheney.

We know from Clinton v. Jones that the President may be sued civily while in office. A different question is whether the Vice-President is immune from criminal indictment (and by a foreign government, no less) during his term in office.

Clinton v. Jones ranks as one of the most naive opinions in the Supreme Court's history. The Court assumed that lawsuits against a sitting President would not detract from the performance of his official duties. You have to ask yourself, what were these people thinking?

There is a fairly good but not conclusive structural argument that the President may not be indicted criminally before being impeached and removed from office, because otherwise a single local prosecutor could bring down the government. Nevertheless, this argument does not seem to apply to Vice-Presidents, whose job is much less important to the continuation of the government. For example, Vice President Spiro Agnew was indicted and pled nolo contendre to a single count of tax evasion in October of 1973 (the unreported income in question was a bribe).

JB

The New York Times has the story.

Pickering was one of a handful of lower court nominees that the Democrats filibustered. In some ways, Bush's decision to appoint Pickering (on a Friday afternoon, in order to avoid substantial press coverage) is not a surprise. In the past Presidents have appointed a number of judges to recess appointments for various and sundry political reasons.

What are the reasons in this case? Recess appointments last until the next session of Congress begins, in this case, in January 2005. Bush may be hoping that he will will some seats in the Senate in the 2004 elections and that will allow him to break through the Senate fillibuster. He would have to pick up a lot of seats for this to happen, or else he would have to cow the Democrats so much that they simply give up their opposition. Nevertheless, even if Pickering is not appointed to a life tenured slot in 2005, Bush will have thrown red meat to his most conservative supporters, showing them that he is standing up to Ted Kennedy and the liberal Democrats.

Bush is well aware that the Democrats will criticize him for this, but at this point he does not care much, thinking that the Pickering nomination will go unnoticed by moderate voters while it will be noticed by social and religious conservatives.

In this sense, what Bush has done has a high payoff with comparatively little risk.

There is an ongoing and quite interesting academic debate about whether recess appointments of Article III judges should be constitutional. The argument is that Article III judges should be independent; that is why they are given life tenure. If Article III judges serve for only a year appointment until the Senate can confirm them they may be tempted to decide cases in ways that they believe that some Senators might like. This is a good structural argument against the practice. The argument on the other side is that the practice of recess appointments for Article III judges is farily well established and it has not led to a very significant degree of judicial corruption. I assume that as Pickering's appointment hits the blogosphere this debate will be renewed.

I don't have much of a problem with Bush appointing judges he believes in to recess appointments. Presidents should appoint the best people possible to the federal judiciary. My problem, rather, is that the fact that Bush believes so strongly in Pickering says something deeply troubling about Bush's politics.

JB

10. American troops sure to be greeted as liberators.

9. Barren Martian landscape resembles top of Dick Cheney's head.

8. Secret campaign contributions by Mars Candy Company.

7. Martian officials have repeatedly refused to respond when Bush accused them of possessing weapons of mass destruction.

6. Paul Wolfowitz theorizes that bringing democracy to Mars will have domino effect throughout Solar System!

5. President thinks it would be really cool to dress up in space suit and shout "Mission Accomplished!"

4. No space contracts for Frenchies!

3. Ashcroft suggests Mars is great place to hold enemy combatants.

2. Large desert spaces with no water or intelligent life remind Bush of his Crawford ranch.

1. New Martian territories guaranteed to be Red states.

JB

According to this Washington Post report, Iraq got rid of all of its biological and chemical weapons in 1991. The only thing that Hussein's government had were drawings of weapons of mass destruction, with no present ability to make those drawings into a reality. American and British intelligence reports were apparently hoodwinked by the fact that Hussein's underlings didn't want to tell him any bad news, so when he asked whether they could develop weapons or were in the process of developing them, they told him what he wanted to hear.

One doesn't know whether to laugh or cry about this.

On the Washington Post website, just below this story, is the following headline: "Mortar Attack Wounds 35 GIs in Iraq."

We are going to be in that country for a very long time, at great cost, and all because of a threat that never existed.

UPDATE: Meanwhile, this story from the Guardian notes that the Carnegie Endowment for International Peace is about to issue a report which accuses the Bush administration of "systematically misrepresenting" the threat posed by "Iraq's weapons of mass destruction."