Based on my piece in BreakingViews:
Harriet Miers’ pressured withdrawal of her nomination for the U.S. Supreme Court raises not one question of succession, but two.
Most immediately, there is the question of who President Bush will nominate to replace retiring justice Sandra Day O’Connor. If he nominates another woman, he can be accused of pandering and imposing a quota at the highest level of government—creating a de facto “woman’s seat” on the Supreme Court (or, more specifically, a Republican woman’s seat). If he appoints another marginally qualified loyalist, like Miers, it will raise serious questions of competence. If he appoints a red meat anti-choice conservative, he will provoke a fight with Democrats, and even a few Republicans, that social conservatives say they want, but which Bush has taken pains to avoid.
If that fight ensues, it will be bloody, and will test whether Bush really wants to work hard to please that part of his base—or if he just wants them handy at election time.
Perhaps more serious is the question of presidential succession. As Vice President Dick Cheney has sworn off his own presidential aspirations, there is no clear successor to the Republican presidential nomination. Bush has no one to hand the mantle of power. That means no one stands ready to advance his agenda, whatever it may be. That makes him more of a lame duck—and an earlier lame duck—than second term presidents are normally.
Bush has lost the fight over Social Security. The next big item on the domestic agenda is tax reform. Lowering taxes is easy politically. But tax reform, if revenue neutral, means winners and losers and tough choices. A president who botched Katrina and nominated Miers and whose senior advisers may be indicted any day, bogged down in Iraq, probably won’t have much political capital left to do any serious governing.
Thursday, October 27, 2005
Friday, October 21, 2005
Selling of the New York Times
Let the Times be Google
A similar posting by me appeared in BreakingViews
Google, with a market value of $86bn may or may not be wildly overpriced. But the fact an upstart, selling nothing but access to information, is worth more than 20 times The New York Times Company, proud owner of the US paper of record, is a stunning fact. How can the Times get a piece of the Google magic?
Certainly it needs a boost as the company these days can’t satisfy anyone. Its quarterly earnings reported yesterday were down by 52% on higher payroll, printing and distribution coats. Editorially, it obsesses in scandals of its own making, such as Jayson Blair and, recently, the Judith Miller affair. Like all newspapers it suffers from competition from the web. The Times own web site is popular—21 million unique visitors in September-- but readers were irked when they were asked to pay for access to the newspaper’s columnists.
One would be hard pressed to say that Google is a superior portal to information than is the Times Company (which also owns other newspapers, and television and radio stations). But the Times, even more than Dow Jones or Gannett, has failed to monetize its information, and seems to have no solid plan to do so. Still in a late ‘90s era which glorified “eyeballs,” the Times has refused to charge online readers. Then it took a half-step by charging for its opinion columns.
What it should do is sell the daily paper online. Sure it will lose some readers, but if the Times is compelling, millions will pay. Then it should monetize yesterday’s papers, which no one normally pays for. It then should make the Times archive into a massive, searchable database. The database should be free, but indispensable. In other words it should be good enough that it can be funded by ads targeted to the search term: the same business that made Google rich.
Google says it wants to catalogue the world’s information. But it owns none of it. Surely the fact that the Times produces buckets of information should be worth something.
A similar posting by me appeared in BreakingViews
Google, with a market value of $86bn may or may not be wildly overpriced. But the fact an upstart, selling nothing but access to information, is worth more than 20 times The New York Times Company, proud owner of the US paper of record, is a stunning fact. How can the Times get a piece of the Google magic?
Certainly it needs a boost as the company these days can’t satisfy anyone. Its quarterly earnings reported yesterday were down by 52% on higher payroll, printing and distribution coats. Editorially, it obsesses in scandals of its own making, such as Jayson Blair and, recently, the Judith Miller affair. Like all newspapers it suffers from competition from the web. The Times own web site is popular—21 million unique visitors in September-- but readers were irked when they were asked to pay for access to the newspaper’s columnists.
One would be hard pressed to say that Google is a superior portal to information than is the Times Company (which also owns other newspapers, and television and radio stations). But the Times, even more than Dow Jones or Gannett, has failed to monetize its information, and seems to have no solid plan to do so. Still in a late ‘90s era which glorified “eyeballs,” the Times has refused to charge online readers. Then it took a half-step by charging for its opinion columns.
What it should do is sell the daily paper online. Sure it will lose some readers, but if the Times is compelling, millions will pay. Then it should monetize yesterday’s papers, which no one normally pays for. It then should make the Times archive into a massive, searchable database. The database should be free, but indispensable. In other words it should be good enough that it can be funded by ads targeted to the search term: the same business that made Google rich.
Google says it wants to catalogue the world’s information. But it owns none of it. Surely the fact that the Times produces buckets of information should be worth something.
Monday, October 17, 2005
Miller's Mess
The Judith Miller affair continues to spin. Miller's own first person account of her grand jury testimony actually makes her seem worse than we knew:
"Mr. Fitzgerald asked about a notation I made on the first page of my notes about this July 8 meeting, 'Former Hill staffer.'
My recollection, I told him, was that Mr. Libby wanted to modify our prior understanding that I would attribute information from him to a 'senior administration official.' When the subject turned to Mr. Wilson, Mr. Libby requested that he be identified only as a 'former Hill staffer.' I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill".
Here, Miller agrees not just to keep Libby's ID hidden, but to lie about that ID. This strikes me as a particularly egregious practice, worse than allowing him anonymity? Indeed, it emphasizes what I wrote in Forbes back in February: The idea of a journalist shield rule is to protect the anonymity of sources who fear retribution from the powerful, whether in government or business. Shielding the identity of a top government official who is using his anonymity to mislead play the press to his benefit turns the whole rationale on its head.
Here's how I put it in Forbes.com:
Expose The Press Players
Dan Ackman, 02.16.05, 9:12 AM ET
"Mr. Fitzgerald asked about a notation I made on the first page of my notes about this July 8 meeting, 'Former Hill staffer.'
My recollection, I told him, was that Mr. Libby wanted to modify our prior understanding that I would attribute information from him to a 'senior administration official.' When the subject turned to Mr. Wilson, Mr. Libby requested that he be identified only as a 'former Hill staffer.' I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill".
Here, Miller agrees not just to keep Libby's ID hidden, but to lie about that ID. This strikes me as a particularly egregious practice, worse than allowing him anonymity? Indeed, it emphasizes what I wrote in Forbes back in February: The idea of a journalist shield rule is to protect the anonymity of sources who fear retribution from the powerful, whether in government or business. Shielding the identity of a top government official who is using his anonymity to mislead play the press to his benefit turns the whole rationale on its head.
Here's how I put it in Forbes.com:
Expose The Press Players
Dan Ackman, 02.16.05, 9:12 AM ET
News accounts of the appeals court decision in the Valerie Plame affair emphasize that reporters must testify to a grand jury or face jail. But that's not quite right. The court's ruling yesterday was really that anyone and everyone must testify to the grand jury, reporters being no exception.
Yesterday's ruling by the D.C. Circuit Court of Appeals upholds an earlier judgment that Matthew Cooper of Time magazine and Judith Miller of the New York Times have an obligation to testify to the grand jury about who leaked Plame's identity as a CIA agent, which could be a federal crime. Both reporters fought to stop a subpoena from a special counsel appointed by the attorney general investigating the leaks. They cited a purported journalist's privilege, which they say is necessary to protect sources who spoke to them pursuant to an agreement that their names be kept out the papers. The court said there is no such privilege either under the first amendment or federal common law.
Whether there should ever be a journalist's privilege is an interesting question. As the court pointed out in its decision yesterday, many states have enacted so-called shield laws, which protect the relationship between a confidential source and a reporter. The court also noted that the federal government has no such statute, and it declined to create the privilege on its own....
The idea that reporters should be permitted to shield the identity of confidential sources even in the face of a valid grand jury subpoena is based on the belief that an evidentiary privilege (like the one a lawyer shares with his client) will encourage sources to reveal truths to journalists. The classic example would be a witness to a scandal who tells what he knows to a journalist, who then makes the scandal known, albeit without the name of his source who leaked the information. It's hard to believe that the remote possibility of a subpoena down the road from a grand jury--which itself operates in secret--will substantially chill the source-reporter relationship.
In any event, the Plame case is nothing like the prototype that might justify a privilege. In this case, the crime, if there was a crime, was the leak itself. The sources were not witnesses to scandal; they are the scandal. Those who exposed Wilson's wife in effect used the press to do their dirty work, not to cleanse it. Their goal, at least according to Wilson, was not to reveal truth, but to punish Wilson for his revelations.
As best as we can tell, they are not brave truth tellers, but craven score-settlers, and powerful government officials to boot. Wouldn't it serve even the press' interest--along with everyone else's--to expose these scoundrels rather than continue to help them hide?
Wednesday, October 12, 2005
That Dobson is such a cutie
He told me where the body was and where I could find the murder weapon. He explained the cause of death in detail, but, no, he did not admit killing the man....
From the New York Times, Oct. 12, 2005:
From the New York Times, Oct. 12, 2005:
Mr. Dobson said he talked to Mr. Rove on Oct. 1, two days before Mr. Bush announced his choice, and had been told that "Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she has taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."
Mr. Dobson went on to say that he and Mr. Rove had not discussed cases that might come before the court and that "we did not discuss Roe v. Wade in any context." The Supreme Court's 1973 decision in Roe v. Wade established a woman's right to have an abortion.
Ackman and the Cronies
Are journalists and even lawyers grromed to be liberal Democrats. More likely they start out that way. John Tierney sees it as a problem, one of self-selection or cronyism:
John Tierney writes in his October 11 NY Times Column:
October 11, 2005
Where Cronies Dwell
By JOHN TIERNEY
Journalists and legal scholars have been decrying "cronyism" and calling for "mainstream" values when picking a Supreme Court justice. But how do they go about picking the professors to train the next generation of journalists and lawyers?
David Horowitz, the conservative who is president of the Center for the Study of Popular Culture, analyzed the political affiliations of the faculty at 18 elite journalism and law schools. By checking all the party registrations he could find, he concluded that Democrats outnumber Republicans by 8 to 1 at the law schools, with the ratio ranging from 3 to 1 at Penn to 28 to 1 at Stanford.
Only one journalism school, the University of Kansas, had a preponderance of Republicans (by 10 to 8). At the rest of the schools, there was a 6-to-1 ratio of Democrats to Republicans. The ratio was 4 to 1 at Northwestern and New York University, 13 to 1 at the University of Southern California, 15 to 1 at Columbia. Horowitz didn't find any Republicans at Berkeley.
Some academics argue that their political ideologies don't affect the way they teach, which to me is proof of how detached they've become from reality in their monocultures. This claim is especially dubious if you're training lawyers and journalists to deal with controversial public policies.
I realize, from experience at six newspapers, that most journalists try not to impose their prejudices on their work. When I did stories whose facts challenged liberal orthodoxies, editors were glad to run them. When liberal reporters wrote stories, they tried to present the conservative perspective.
The problem isn't so much the stories that appear as the ones that no one thinks to do. Journalists naturally tend to pursue questions that interest them. So when you have a press corps that's heavily Democratic - more than 80 percent, according to some surveys of Washington journalists - they tend to do stories that reflect Democrats' interests.
The following day, the Times published my letter to the editor:
From The New York Times, Oct. 12, 2005
To the Editor:
As a graduate of both law school and journalism school, I find it hard to argue with John Tierney's premise that law professors and especially journalism professors tend toward liberalism. But it's harder to argue that either profession favors liberals outside the academy.
Indeed, conservative lawyers, if they are a minority, have a much better shot at judgeships or high-level government positions since it's conservatives who are doing the appointing more often than not.
More broadly, if liberals are channeling their own most brilliant acolytes into law and journalism, that just leaves more space in business schools, banks and corporations for young conservatives. Thus, the conservatives wind up wielding greater power, lacking only vague cultural influence.
If conservatives had concocted this arrangement deliberately, they could have hardly done better for themselves.
Daniel L. Ackman
Jersey City, Oct. 11, 2005
John Tierney writes in his October 11 NY Times Column:
October 11, 2005
Where Cronies Dwell
By JOHN TIERNEY
Journalists and legal scholars have been decrying "cronyism" and calling for "mainstream" values when picking a Supreme Court justice. But how do they go about picking the professors to train the next generation of journalists and lawyers?
David Horowitz, the conservative who is president of the Center for the Study of Popular Culture, analyzed the political affiliations of the faculty at 18 elite journalism and law schools. By checking all the party registrations he could find, he concluded that Democrats outnumber Republicans by 8 to 1 at the law schools, with the ratio ranging from 3 to 1 at Penn to 28 to 1 at Stanford.
Only one journalism school, the University of Kansas, had a preponderance of Republicans (by 10 to 8). At the rest of the schools, there was a 6-to-1 ratio of Democrats to Republicans. The ratio was 4 to 1 at Northwestern and New York University, 13 to 1 at the University of Southern California, 15 to 1 at Columbia. Horowitz didn't find any Republicans at Berkeley.
Some academics argue that their political ideologies don't affect the way they teach, which to me is proof of how detached they've become from reality in their monocultures. This claim is especially dubious if you're training lawyers and journalists to deal with controversial public policies.
I realize, from experience at six newspapers, that most journalists try not to impose their prejudices on their work. When I did stories whose facts challenged liberal orthodoxies, editors were glad to run them. When liberal reporters wrote stories, they tried to present the conservative perspective.
The problem isn't so much the stories that appear as the ones that no one thinks to do. Journalists naturally tend to pursue questions that interest them. So when you have a press corps that's heavily Democratic - more than 80 percent, according to some surveys of Washington journalists - they tend to do stories that reflect Democrats' interests.
The following day, the Times published my letter to the editor:
From The New York Times, Oct. 12, 2005
To the Editor:
As a graduate of both law school and journalism school, I find it hard to argue with John Tierney's premise that law professors and especially journalism professors tend toward liberalism. But it's harder to argue that either profession favors liberals outside the academy.
Indeed, conservative lawyers, if they are a minority, have a much better shot at judgeships or high-level government positions since it's conservatives who are doing the appointing more often than not.
More broadly, if liberals are channeling their own most brilliant acolytes into law and journalism, that just leaves more space in business schools, banks and corporations for young conservatives. Thus, the conservatives wind up wielding greater power, lacking only vague cultural influence.
If conservatives had concocted this arrangement deliberately, they could have hardly done better for themselves.
Daniel L. Ackman
Jersey City, Oct. 11, 2005
Wednesday, October 05, 2005
Why Miers?
Not only has Harriet E. Miers never been a judge, she has barely been a litigator.
She must not have done very well in law school, because had she graduated with any kind of honors, we would have heard about it.
Then, according to the blog Is That Legal,, citing New Jersey lawyer Peter Goldberger:
Her record in the Texas state courts is equally limited.
The one defense to the cronyism charge is that President Bush and Miers are probably not all that close. You don't appoint good friends to be lottery commissioner. That's where you install friends of cousins' friends. That she was Bush's "personal lawyer," strikes me as inconsequential, too. Bush never had the kind of career, nor the inclinaion (that is an interest in doing things legally), that would lead him to forge strong ties to his lawyer.
Then there is the comparison with other non-judges to get the high court nod. These individual tended to be towering figures-- attorneys general, senators and so on.
Of recent justices who were never judges, all were either distinguished lawyers, holders of high office or top Justice Department lawyers. Here’s a list:
Owen Josephus Roberts: appointed by Hoover in 1930; was in private practice, but also had served in federal law enforcment as special counsel
Stanley Forman Reed: appointed by F. Roosevelt 1938; was U.S. solicitor general
Felix Frankfurter: appointed by F. Roosevelt in 1939; was a top tier law professor at Harvard
William Orville Douglas: appointed by F. Roosevelt in 1939; was SEC chairman
James Francis Byrnes: appointed by F. Roosevelt in 1941; was a U.S. Senator
Robert Houghwout Jackson: appointed by F. Roosevelt in 1941; was U.S. Attorney General
Harold Hitz Burton: appointed by Truman in 1949; was a U.S. Senator
Thomas Campbell Clark: appointed by Truman in 1953; was U.S. Attorney General
Earl Warren: appointed by Eisenhower in 1953; was Governor of California
Byron Raymond White: appointed by Kennedy in 1962; was Deputy U.S. Attorney General
Arthur Joseph Goldberg: appointed by Kennedy in 1962; was Secretary of Labor
Abe Fortas: appointed by Johnson in 1965; was in private practice and known as a first class Supreme Court advocate
Lewis Franklin Powell, Jr.: appointed by Nixon in 1971; was in private practice, also president of the ABA
William Hubbs Rehnquist: appointed by Nixon in 1971: was Ass't U.S. Attorney General
Harriet Miers was a top manager of her law firm, but never a leading lawyer by any lights. To be sure, may Supreme Court justices become “great” or have greatness thrust upon them. They don’t necessarily start out that way. (And after all, what is a federal judge but a lawyer who knows a senator?) Still, unlike the future justices listed here, she has not been steeped in federal law or the type work in which federal judges must know.
She must not have done very well in law school, because had she graduated with any kind of honors, we would have heard about it.
Then, according to the blog Is That Legal,, citing New Jersey lawyer Peter Goldberger:
A quick WestLaw search suggests that Harriet Miers has never argued before the Supreme Court (nor has her name appeared on brief there), and she has argued three cases before the Fifth Circuit (with her name appearing as additional counsel on a handful of others) over the last 30 years -- two of them pro bono or by appointment of the court. Her argued cases are: Thanksgiving Tower Partners v. Arnos Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995) (commerical real estate dispute); Ware v. Schweiker, 651 F2d 408 (5th Cir. 1981) (volunteer pro bono counsel for Social Security disability applicant, through legal aid program); Popeko v US, 513 F.2d 771 (5th Cir. 1975) (sec 2255 appeal for federal prisoner, by appt of court).
Her record in the Texas state courts is equally limited.
The one defense to the cronyism charge is that President Bush and Miers are probably not all that close. You don't appoint good friends to be lottery commissioner. That's where you install friends of cousins' friends. That she was Bush's "personal lawyer," strikes me as inconsequential, too. Bush never had the kind of career, nor the inclinaion (that is an interest in doing things legally), that would lead him to forge strong ties to his lawyer.
Then there is the comparison with other non-judges to get the high court nod. These individual tended to be towering figures-- attorneys general, senators and so on.
Of recent justices who were never judges, all were either distinguished lawyers, holders of high office or top Justice Department lawyers. Here’s a list:
Owen Josephus Roberts: appointed by Hoover in 1930; was in private practice, but also had served in federal law enforcment as special counsel
Stanley Forman Reed: appointed by F. Roosevelt 1938; was U.S. solicitor general
Felix Frankfurter: appointed by F. Roosevelt in 1939; was a top tier law professor at Harvard
William Orville Douglas: appointed by F. Roosevelt in 1939; was SEC chairman
James Francis Byrnes: appointed by F. Roosevelt in 1941; was a U.S. Senator
Robert Houghwout Jackson: appointed by F. Roosevelt in 1941; was U.S. Attorney General
Harold Hitz Burton: appointed by Truman in 1949; was a U.S. Senator
Thomas Campbell Clark: appointed by Truman in 1953; was U.S. Attorney General
Earl Warren: appointed by Eisenhower in 1953; was Governor of California
Byron Raymond White: appointed by Kennedy in 1962; was Deputy U.S. Attorney General
Arthur Joseph Goldberg: appointed by Kennedy in 1962; was Secretary of Labor
Abe Fortas: appointed by Johnson in 1965; was in private practice and known as a first class Supreme Court advocate
Lewis Franklin Powell, Jr.: appointed by Nixon in 1971; was in private practice, also president of the ABA
William Hubbs Rehnquist: appointed by Nixon in 1971: was Ass't U.S. Attorney General
Harriet Miers was a top manager of her law firm, but never a leading lawyer by any lights. To be sure, may Supreme Court justices become “great” or have greatness thrust upon them. They don’t necessarily start out that way. (And after all, what is a federal judge but a lawyer who knows a senator?) Still, unlike the future justices listed here, she has not been steeped in federal law or the type work in which federal judges must know.
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