They don't like you! They really don't like you! Warren Beatty and Rob Reiner aren't nearly as popular as their backers thought they were, according to the latest Field Poll. Beatty's rating is 40% unfavorable/27% favorable--among Democrats! Yikes. .. Reiner is at least more popular than unpopular within his own party, but overall his unfavorables outweigh his favorables among independents (34/24) and overall (41/25). ... Prediction: The eye-opening poll will get little coverage in the LAT. Too interesting! If it does, the Times will give it the obvious interpretation--that California voters have soured on actors-turned-politicos. But maybe they've especially (and unexpectedly) soured on Hollywood liberals. ... P.S.: Light up, California! Reiner previously promoted a victorious state initiative that taxes cigarette sales to fund early childhood health and nutrition projects. He's now so addicted to the cigarette money that he's opposing an initiative to slap a further tax on cigarettes (to fund emergency rooms) because it might decrease cigarette sales and threaten the funding for his pet programs. ... 11:35 A.M. link
If you only want to read one Alito article, Jeffrey Rosen's TNR piece on what to look for in the confirmation hearings is a good choice. Rosen wants a non-activist on the court--defined as someone who will err on the side of deferring to democratically-elected legislatures. He's troubled by a couple of federalism cases that "suggest [Alito] might be a conservative ... with an agenda to restrict congressional power." But he's not troubled by much else, including Alito's abortion decisions. Rosen thinks Senators can allay their concerns if Alito answers key questions "precisely and candidly, as Roberts did." I have three qualms:
1) Just because a lawyer or judge proceeds incrementally, case-by-case, making law from the "bottom up," doesn't mean he or she isn't an ideological activist (when compared with someone who speaks in sweeping principles). An ideologue might want to proceed case by case without ever committing to a grand principle because the latter course might foreclose using another principle to achieve a desired ideologically-driven result in a future case. Principles can be confining! Better to keep your options open. Ruth Bader Ginsburg established her reputation as a not-so-liberal when she questioned the "substantive due process" basis of Roe v. Wade. But it turned out that was because she thought another, broader principle down the road might provide a more powerful feminist weapon to use in striking down abortion restrictions. ...
2) Rosen buys into the highly suspect idea of "super-precedents," a transparently opportunistic attempt to insulate Roeby claiming it has "been accepted by different presidents, Congresses and courts over time." Kinsley effectively ridicules the "super-precedent" idea here. My own crude view: Roe was one of the least convincing constitutional decisions I've ever read. It was crap in 1973 and three decades haven't made it less crap. The legislative regime imposed by Roe--regulation that varies by trimester, etc.--is perfectly reasonable, but it can and should be imposed by a legislature. It's not in the Constitution. As Kinsley notes,
if a policy really has become a deeply rooted national value, then the once-controversial Supreme Court ruling is superfluous, because democracy will protect such a value. The fear that motivates the Roe panic is that the rights at stake are not deeply rooted. Or not deeply enough.
3) Rosen contrasts Roberts' model testimony with Clarence Thomas'. Thomas, Rosen argues, went ahead and did on the bench what he said he wouldn't do, reinterpreting the Commerce Clause and writing natural-law theories into the Constitution. But what does that say of the ability of Senators to use pre-confirmation testimony as a guide to what a judge will do? Why is "specificity" such a good indicator if a judge, once on the bench, can just ignore his specific answers? Nor was Roberts always so specific, even in the answers Rosen himself picks out:
Roberts, on the other hand, was much more specific in making clear that he thought the Court should strike down acts of Congress only on rare occasions. He quoted Justice Oliver Wendell Holmes's observation that striking down federal laws is the "gravest and most delicate duty that the Court performs." And he stressed that "the reason is obvious: All judges are acutely aware of the fact that millions and millions of people have voted for you, and not one has voted for any of us."
If Rosen thinks that those answers aren't "platitudes," or that they would stop Roberts from striking down any law he wants to strike down--well, Rosen's a cheaper date than I'd thought.
1:36 A.M. link
Kit on Kurtz: She's too even-handed. ... The NYT's Seelye has me saying that CNN/WaPo fixture Howie Kurtz is an honest reporter, which I think he is. But even honest reporters can have strong subconscious motivations. I don't believe, as Seelye suggests, that applying the normal conflict-of-interest rules to Kurtz would be a merely prophylactic exercise. My view of Kurtz changed when he wrote what was in effect a perfect damage control story for CNN executive Eason Jordan when Jordan was under fire for remarks he made at Davos--a point I tried to make to Seelye. (She actually gives Kurtz points for having "not spared the network" in the Jordan episode, which is what it may look like if you weren't following the controversy at the time.) ... In essence, CNN made Kurtz famous and now CNN has him by the balls.
P.S.: Alert reader C.S. questions this Seelye graf--
He draws salaries from two of the most important media companies in the country: CNN, which is owned by Time Warner, and The Post, which is owned by The Washington Post Company. Such arrangements do not violate Post policy. In fact, The Post has quite liberal rules regarding extracurricular work by its reporters and editors. [Emph. added]
It's one thing for a reporter to do extracurricular work and get paid for it, C.S. notes. But most WaPo reporters who moonlight for, say, Vanity Fair, don't report on Vanity Fair as part of their regular beats. Is Seelye really right that it's not a violation of "Post policy" to draw a salary from a company you cover? Those are some liberal rules! New vistas of possible revenue opportunities crowd the imagination. No wonder reporters at the Post can afford to buy houses in the D.C. market. ... [You're writing about the Washington Post Company here. Don't you draw a salary from that very same company?--ed No I don't! ... Oh, wait. WaPo owns Slate, doesn't it? But--
1) Every reporter who's paid has a conflict with whatever institution pays him. That's unavoidable. Kurtz's problem is that he has a second, gratuitous conflict with the giant conglomerate the Post pays him to cover.
2) Kurtz's second conflict is especially huge. If the Post fired him, after all, he could get a job with another paper within an hour. The Post doesn't have much leverage (as their see-no-evil treatment of Kurtz suggests). But if CNN cancelled Kurtz's show, the other TV networks wouldn't exactly be falling over themselves to snap him up. Not even MSNBC! (Though Kurtz does have a career interest in keeping MSNBC's Rick Kaplan happy, too, just in case. That makes it worse.) CNN has leverage.
3) Hypocrisy Angle #1: I don't think all writers have to be free of all conflicts. Everybody has conflicts. Life creates conflicts. Conflicts can be good--they tend to come with inside info and perspective. As long as a conflict is disclosed, readers can usually make up their minds. But WaPo, like most MSM organizations, does pretend to prohibit conflicts in order to achieve neutrality and "objectivity." WaPo editor Len Downie famously doesn't even vote. After ostentatiously purging such petty conflicts it's hypocritical to then ignore Kurtz's elephantine conflict. As reader C.S. argues,
It's one thing to say "We violate our policies in this unusual case, just as we violate our rules governing quotations when Woodward wants to 'reconstruct' White House conversations. But these are great reporters and they've earned waivers to our rules." It's another to say: "Nope, no issues here at all."
4)Hypocrisy Angle #2: Kurtz himself, as WaPo's media reporter, has made it his business to ding other journalists for conflicts far less significant than his own.
Update: Kurtz is discussed here, a video dialogue in which I talk rather too much about my deep dark personal beef with Kurtz.Not that there's anything wrong with it! ... Backfill: See also this post. ... 10:33 P.M. link