Hi there Wheel, Empty, and and otherwise gear heads, it is time for Spring Trash Talk. There is a lot under foot, Spring Training in Major League Baseball, free agency season and pending entry draft in the NFL, the somewhat diminished fortunes of the NBA and, most of all, FORMULA ONE! The Circus season is upon us, and it is starting down under in the Land of Oz.

Appears we are starting off where we left off: there is yet no reason to believe the Red Bulls of Sebastian Vettel and Mark Webber are anything less than the cars to beat. But, that being said, there is also no reason to think that the Ferrari and McLarens are anything less than the threat that they were at the end of last season. Drivers make a difference in F1, and Fernando Alonso and Jenson Button are very, very good drivers. And their cars are not chopped liver either. For the clear superiority of the Red Bulls, and even the McLarens for that matter, Fernando Alonso pulled off one of the greatest performances in the history of F1 with inferior equipment last year. Alonso was only 3 measly points behind Vettel in the final Driver’s standings. Simply astonishing.

The opening two practice sessions for the Australian GP were late last night my time; i.e. between 9 pm and 12 am whatever the heck time AZ is. (Daylight savings time really screws with our heads here, cause we don’t do that). Bottom line…..not much has changed.

Okay, if I were pleading guilty (I would never!) to a heinous offense under truth serum to make sure I was cray cray (yeah, okay, this is some stupid shit too) I MIGHT admit that a lot of this post was written from a series of taco joints in Old Town Scottsdale. It is nowhere near as opulent as it sounds; hell even the mariachi music is piped in like Muzak. And the 60 something threesome at the table next to me looks like their Winnebago may be illegally parked out on Camelback Road.

Where were we? Okay, back to the Australian GP. Here is what Brad Spurgeon thought:

Red Bull and Sebastian Vettel have won all the titles for the last three seasons. Vettel became only the third driver in Formula One history to win three drivers’ titles in a row, after Juan Manuel Fangio in the 1950s and Michael Schumacher last decade. Only Schumacher, Fangio and Alain Prost have won more than three titles, with seven, five and four, respectively. So both Vettel and the team have more pressure on them than ever. Still, Red Bull has the advantage of the consistency of keeping the same two drivers and technical team, and Mark Webber is still pushing for his own final career chances to capture the drivers’ title. With the great designer Adrian Newey leading the way, Red Bull should remain among the strongest.

As a lifelong aficionado of Scuderia Ferrari, I would kill to demur. But, I cannot; I think that is right. Still. As to the beloved Prancing Horse, well, from the lens of the season start, it will take another superhuman drive for the ages by Fernando Alonso to keep Ferrari in the chips.

That leaves McLaren and Mercedes fighting for sloppy thirds. Maybe it will come to be that one will blast out of nowhere to be a contender for King Vettel’s Crown, but it is really hard to see. Lewis Hamilton proved himself to be a self absorbed punk at the more superior team, McLaren; now he will try to do what Michael Schumacher could not at fast, but unreliable, Mercedes. Please. Juan Pablo Montoya performed better and was sent packing to NASCAR.

For all the sturm and drang, for all the off season shuffle, the Championship will still be fought for between Red Bull and Ferrari, with a decided advantage to the former.

Let the Circus games begin!

And, then, there is the NFL free agency merrygoround. Heck, I do not know who are the winners and losers at this point. But, a quick take says the Steelers and Cardinals, the teams of local pricks bmaz and Scribe, did not do well.To be kind. Probably nobody did worse than the Cardinals, who signed an aging punt return specialist that even the Cleveland Browns did not care about anymore, and let go Kevin Kolb, the only even practice squad level NFL quarterback they had. Seriously, what kind of addled mentally challenged assholes are running the Cardinals? Oh, wait, it is still the fucking Bidwell family. Who could have guessed from this level of rank pathetic incompetence??

The Deetroit Kittehs seem to have done very well. If they can keep their peeps healthy and out of the klink, they may have the greatest show on fake turf. The Pats lost Welker’s whining wife (and shitloads of clutch catches in the slot and over the middle) BUT gained a sometimes fragile Danny Amendola. Amendola was the successor in kind at the Pirate attack fun/gun at Texas Tech. Amendola is actually every bit the route runner, and even faster, than Welker. But he ain’t as predictable, nor as reliable, as Welker. This could be a wash, or it could be a loss. Time will tell. The Pat’s defense and, especially, secondary looks to be much improved.

Other than the above, the Squawks got Percy Harvin and some other studs, and the Niners got some too. Whoo weee baybee, the gold rush is on on the left coast.

MLB is in Spring Training; let me tell ya something brother, it is fucking hot here. The NBA is in the stretch run, but the only question of interest I see is what lower seed will the Lakers fill? 8? 7? 6 looks bleak, but not impossible; though I would be shocked. We will return to that in a roundball post later. As we will with the student athletes for March Madness, and very soon.

Rock it, Talk it, Jayhawkit. Get yer sweve on Wheelies. Light it up.

Music by BB King, Bono and the band.

Central to the prosecutorial misconduct directly resulting in the criminal charges against former Alaska Senator Ted Stevens being dismissed was Brenda Morris, the Principal Deputy Chief of the DOJ Public Integrity Section (PIN). The misconduct was so egregious, and the Office of Professional Responsibility (OPR) so infirm, the trial judge, Emmet Sullivan, appointed a special court investigator to handle a criminal contempt probe.

Has the DOJ itself taken any action in light of the heinous conduct? No, of course not, they never do at the Roach Motel that is the OPR. Instead, the DOJ banished Morris to the Atlanta USA office apparently still as some kind of functioning authority in the Public Integrity (PIN) section. The DOJ is nothing if not consistent, whether under Bush or Obama.

Morris has promptly inserted herself into another high charged political mess, and done so with questionable ethics and curious basis for involvement. From Joe Palazzolo at Main Justice:

Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.

The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the amendment, which the Senate passed on March 30.

The state House of Representatives has yet to vote. Alabama Democrats sent a letter to the Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the amendment.

Here, from the Alabama Press Register, are a few quotes from local Alabama legal experts familiar with the facts and history:

Doug Jones, a former U.S. attorney now in private practice in Birmingham, called the private meeting a “virtually unprecedented” break from standard FBI procedures.

“I can’t think of a legitimate law enforcement purpose to do something like this,” said Jones, who represents members of the Alabama Democratic Caucus.

“I have never, in all my years of practicing law, heard of an event like what happened (on Thursday)” said Mobile County District Attorney John Tyson Jr. “It was stunning to me.”

Former U.S. Attorney William Kimbrough of Mobile said he’d seen nothing like it in a legal career that spans nearly five decades.

So what in the world was Brenda Morris doing smack dab in the middle of such a contentious political mess and how could the Obama/Holder DOJ think it appropriate? The answer is hard to fathom. Morris was supposed to have been tasked to the Atlanta US Attorney’s office as a litigation attorney while she is being investigated by the court for criminal contempt from her last case. You really have to wonder who is running the asylum at DOJ Main to think that there could ever be positive optics from Morris being involved in anything politically contentious.

You also have to wonder how exactly it is the Obama Administration has seen fit to leave Leura Canary, the Karl Rove acolyte who persecuted Don Siegelman, in office as the US Attorney for the Middle District of Alabama. Local blogs are not amused; from Legal Schnauzer:

According to press reports, representatives from the Office of the U.S. Attorney for the Middle District of Alabama played a key role in Thursday’s meeting. Bush appointee Leura Canary, who oversaw the prosecution of former Democratic governor and Bob Riley opponent Don Siegelman, remains in the charge of that office. Alabama’s two Republican U.S. Senators, Richard Shelby and Jeff Sessions, have scuttled various Obama nominees for the position, and the White House, so far, has chosen not to fight for the two candidates (Michel Nicrosi and Joseph Van Heest) favored by Democrats.

Canary’s lingering presence in office almost certainly is driving the bingo investigation. Angela Tobon, an FBI special agent in Mobile, Alabama, told The Birmingham News that the Public Integrity Section (PIN) of the Justice Department is leading the inquiry. Tobon refused to elaborate when contacted by a reporter from the Montgomery Advertiser.
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Does that mean Leura Canary was able to take advantage of a leaderless organization, contacting “loyal Bushies” still embedded in the Justice Department to help get PIN involved in a bogus Alabama operation?

It sure looks that way.

I honestly do not know enough to make the call on the underlying electronic bingo investigation, but the locals sure look to be raising a lot of very good questions about how it is being used to manipulate the local political landscape. Irrespective of the merits of the underlying investigation, leaving tainted authorities, of questionable ethics, like Leura Canary and Brenda Morris to be the face of this unusual and politically charged matter is simply inexcusable.

Previously, Marcy Wheeler noted the unsavory blending of the private interests of health insurance companies with the power and hand of the US government:

It’s one thing to require a citizen to pay taxes–to pay into the commons. It’s another thing to require taxpayers to pay a private corporation, and to have up to 25% of that go to paying for luxuries like private jets and gyms for the company CEOs.

It’s the same kind of deal peasants made under feudalism: some proportion of their labor in exchange for protection (in this case, from bankruptcy from health problems, though the bill doesn’t actually require the private corporations to deliver that much protection).In this case, the federal government becomes an appendage to do collections for the corporations.
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The reason this matters, though, is the power it gives the health care corporations. We can’t ditch Halliburton or Blackwater because they have become the sole primary contractor providing precisely the services they do. And so, like it or not, we’re dependent on them. And if we were to try to exercise oversight over them, we’d ultimately face the reality that we have no leverage over them, so we’d have to accept whatever they chose to provide. This bill gives the health care industry the leverage we’ve already given Halliburton and Blackwater.

Marcy termed this being “On The Road To Neo-feudalism” and then followed up with a subsequent post noting how much the concept was applicable to so much of the American life and economy, especially through the security/military/industial complex so intertwined with the US government.

Marcy Wheeler is not the only one recently noting the striking rise in power of corporate interests via the forceful hand of US governmental decree (usually at the direct behest of the corporate interests). Glenn Greenwald, expanding on previous work by Ed Kilgore, penned a dynamic description of the dirty little secret (only it is not little by any means) afoot in modern American socio-political existence:

But the most significant underlying division identified by Kilgore is the divergent views over the rapidly growing corporatism that defines our political system.

Kilgore doesn’t call it “corporatism” — the virtually complete dominance of government by large corporations, even a merger between the two — but that’s what he’s talking about. He puts it in slightly more palatable terms:

To put it simply, and perhaps over-simply, on a variety of fronts (most notably financial restructuring and health care reform, but arguably on climate change as well), the Obama administration has chosen the strategy of deploying regulated and subsidized private sector entities to achieve progressive policy results. This approach was a hallmark of the so-called Clintonian, “New Democrat” movement, and the broader international movement sometimes referred to as “the Third Way,” which often defended the use of private means for public ends.

As I’ve written for quite some time, I’ve honestly never understood how anyone could think that Obama was going to bring about some sort of “new” political approach or governing method when, as Kilgore notes, what he practices — politically and substantively — is the Third Way, DLC, triangulating corporatism of the Clinton era, just re-packaged with some sleeker and more updated marketing. At its core, it seeks to use government power not to regulate, but to benefit and even merge with, large corporate interests, both for political power (those corporate interests, in return, then fund the Party and its campaigns) and for policy ends. It’s devoted to empowering large corporations, letting them always get what they want from government, and extracting, at best, some very modest concessions in return. This is the same point Taibbi made about the Democratic Party in the context of economic policy:

The significance of all of these appointments isn’t that the Wall Street types are now in a position to provide direct favors to their former employers. It’s that, with one or two exceptions, they collectively offer a microcosm of what the Democratic Party has come to stand for in the 21st century. Virtually all of the Rubinites brought in to manage the economy under Obama share the same fundamental political philosophy carefully articulated for years by the Hamilton Project: Expand the safety net to protect the poor, but let Wall Street do whatever it wants.

One finds this in far more than just economic policy, and it’s about more than just letting corporations do what they want. It’s about affirmatively harnessing government power in order to benefit and strengthen those corporate interests and even merging government and the private sector.

Ms. Wheeler and Mr. Greenwald are correct, and the phenomenon is not just limited to the healthcare and military/industrial complex either; it is even more alarming in the ever more dominant and pervasive financial sector, home of the “too big to fail”. The phrase itself should terrify citizens, yet the country seems blithely oblivious to the implications. If there was even a vein of common sense among the people and leadership of this country, there would be immediate realization that an entity too big to fail is so big that it controls the government as much as the other way around. But the people are asleep, distracted by their own despair and desensitized over the years. The leadership, as both Wheeler and Greenwald describe have become symbiotic with the cause and, thus, are the part of problem not a source of solution.

Marcy Wheeler describes the concentration of power and wealth in corporations married to the hand of government as neo-feudalism; Glenn Greenwald and Kilgore posit it as corporatism. Both are worthy and descriptive terms, but the real ill goes a bit deeper if you also consider the accompanying rise in income inequality and transfer of wealth to the privileged and powerful few individuals that has paralleled what Marcy and Glenn describe. When you put it all together, the result is a situation that eerily duplicates the era of the robber barons existing in the United States 100 years ago.

The New Robber Barons

Robber Barons as a descriptor for the modern overlords came to me during a conversation with several colleagues a week or two ago on how to term the healthcare companies and their owners and executives. In writing this article, however, I have found I am far from the first person to realize how the old is new again in this regard to the rapacious class. Over a decade ago, Brad DeLong hit on the same precise thought, and he hit it hard and big:

“Robber Barons”: that was what U.S. political and economic commentator Matthew Josephson (1934) called the economic princes of his own day. Today we call them “billionaires.” Our capitalist economy–any capitalist economy–throws up such enormous concentrations of wealth: those lucky enough to be in the right place at the right time, driven and smart enough to see particular economic opportunities and seize them, foresighted enough to have gathered a large share of the equity of a highly-profitable enterprise into their hands, and well-connected enough to fend off political attempts to curb their wealth (or well-connected enough to make political favors the foundation of their wealth).

Matthew Josephson called them “Robber Barons”. He wanted readers to think back to their European history classes, back to thugs with spears on horses who did nothing save fight each other and loot merchant caravans that passed under the walls of their castles. He judged that their wealth was in no sense of their own creation, but was like a tax levied upon the productive workers and craftsmen of the American economy. Many others agreed: President Theodore Roosevelt–the Republican Roosevelt, president in the first decade of this century–spoke of the “malefactors of great wealth” and embraced a public, political role for the government in “anti-trust”: controlling, curbing, and breaking up large private concentrations of economic power.
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And whatever the causes, the period since the mid-1970s has seen wealth concentration in the United States increase more rapidly than ever before–even during the heyday of industrialization in the last decades of the nineteenth century. Aggregate measures of wealth concentration today are greater than at any time since the election of Franklin D. Roosevelt in the Great Depression, and are within striking distance of the peak in wealth concentration reached during the Gilded Age (see Wolff, 1994).
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It is striking how closely numbers of “billionaire” match shifts in aggregate wealth inequality: when the frequency of billionaires in the labor force is high, wealth concentration is high. A simple linear regression predicts that the frequency of billionaires would drop to zero should the share of wealth held by the top one percent drop to twenty percent or so–and, indeed, we find no billionaires back when wealth concentration was so low.
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These causes of immense wealth have nothing to do with the determinants of the relative supplies of skilled and unskilled workers, or with the technological requirements of production. It makes me think that the overall level of wealth concentration is much more a “political” and a “cultural” phenomenon than an “economic” one: that we through our political systems and our attitudes have much more to do with the concentration of wealth than does the dance of factor supplies and technology-driven factor demands.

DeLong’s piece is a comprehensive thesis that describes both the history of the earlier American robber barons and modern day versions, at least as of the time he penned his work in 1997-98. Brad noted disturbing trends at the time, but did not reach hard conclusions as to the overall effect of the phenomenon on the health of American society.

So if there is a lesson, it is roughly as follows: Politics can put curbs on the accumulation of extraordinary amounts of wealth. And there is a very strong sense in which an unequal society is an ugly society. I like the distribution of wealth in the United States as it stood in 1975 much more than I like the relative contribution of wealth today. But would breaking up Microsoft five years ago have increased the pace of technological development in software? Probably not. And diminishing subsidies for railroad construction would not have given the United States a nation-spanning railroad network more quickly.

So there are still a lot of questions and few answers. At what level does corruption become intolerable and undermine the legitimacy of democracy? How large are the entrepreneurial benefits from the finance-industrial development nexus through which the truly astonishing fortunes are developed? To what extent are the Jay Goulds and Leland Stanfords embarrassing but tolerable side-effects of successful and broad economic development?

DeLong knew what the issues were, but did not have firm conclusions and answers as to the potential detriment or benefit of such unequal wealth distribution. However, the decade plus that has elapsed since Brad wrote his version of the robber barons, and especially the last two, has put a far different patina on the situation. It is not just the difference between the rich man and poor man, it is the vanishing middle class coupled with the ever grosser arrogance, recklessness and impunity which makes the New Robber Barons such a dangerous and destructive force. There is no longer need to describe what the downside of the insanity could be; we know, we are living it as we speak and have been over the past two years.

The question is where we go from here with respect to the New Robber Baron overlords. Just mosey along status quo as the Obama Administration appears to envision, not looking back with anger, accountability and real change; or do we plow the harder, but ultimately more fertile ground of curbing the irrational and destructive accumulation of wealth and power through Teddy Rooseveltian anti-trust programs, return of Glass-Steagall protections separation of banking and investment functions and tax and social programs to rebuild the evaporating middle class.

Healthcare is the current flashpoint, and it is rightfully a big one. There is no question but that the US needs “reform”; but there is a real question, still to be answered, whether there will be something produced which benefits the masses of citizens both now and in the future or just an illusory pile of junk that benefits the ruling classes of politicians and health industry robber barons.

As Marcy Wheeler and Glenn Greenwald have persuasively argued, however, it goes much, much deeper than merely healthcare; the battle is over the root ethos of what this country is and is going to be. The incontrovertible trend is toward an unholy blending of the robber barons with the government itself. Not just the usual influencing of government policies through lobbying and monetary control of individual politicians to seek favorable policies, but where the federal government becomes an appendage to do collections, enforcement and expansion for the corporations. The best time to rethink and reverse this trend is now, it will not get easier as the trend becomes more ingrained and pervasive with time.

As long as this post is, the surface of this topic has barely been scratched. It is my hope to peg this phenomenon with a term simple, descriptive and instantly understandable by all, and to start a discussion both in comments to this post and in subsequent posts here and by others across the spectrum. Time is wasting at an alarming rate.

(graphic courtesy of Southern Labor Archives, Georgia State University)

Yesterday, when I wrote about 34 Obama Nominees Not Named Dawn Johnsen being confirmed by the Senate on the heels of the healthcare vote, and before they left town, I was not aware, in addition (h/t earlofhuntingdon), the nomination was now completely dead. From Main Justice:

The Senate approved a unanimous consent request today to hold over several nominees for the second session of the 111th Congress, which begins in January.

But nominees to head three DOJ offices: Dawn Johnsen, for the Office of Legal Counsel, Mary L. Smith, for the Tax Division, and Christopher Schroeder, for the Office of Legal Policy, were returned to the White House before the Senate recessed for the holidays.

Johnsen, who was nominated in February, was approved by the Senate Judiciary Committee in March on a party line vote.

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

The nomination of Dawn Johnsen to be the head of the Office of Legal Counsel at DOJ, a critical post, is now truly dead. If Ms. Johnsen is to serve, she will have to be renominated by Barack Obama and start over. She never got the up or down vote promised as soon as the Senate had done healthcare, she never got an ounce of support from the Administration that nominated her, and a year of her life was taken in what certainly appears to be a cowardly and demeaning political ploy.

There is a bit more than meets the eye to unpack here. Harry Reid held over several nominations for the return to session in January, but Dawn Johnsen was not one of them. The implication is that he could only do so by a “unanimous consent” approval by the Senate and that, golly gosh, he just could not get it. That does indeed appear to be the case from the Senate Rules on Nominations. Rule XXXI(6) provides:

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.

Even assuming Harry Reid had no alternative but to return the nomination, the better question is how did it get to this point, and why has the White House and Senate been so disingenuous about it? The only rational conclusion at this point is that killing Johnsen’s nomination is precisely what the Obama White House desired. The White House intentionally left to rot, and then outright killed, their own nominee.

The evidence of this is pretty damning. Dawn Johnsen’s nomination had languished, twisting in the wind, for 280 days as of the time her nomination was killed by Harry Reid, far longer than any other Obama nominee. The only notable recent support for Johnsen from the White House came in a statement by White House Counsel Greg Craig on October 11, 2009, a weak statement saying only that the White House “would not withdraw” her nomination. Craig was subsequently fired and, hilariously, attempted to be scapegoated by Rahm Emanuel for – wait for it – not getting nominations like Johnsen’s confirmed.

A typical Rahm Emanuel backhanded opaque play; blame someone (Craig) interested in governmental transparency for not getting another official who favors openness and transparency (Johnsen) confirmed, and all the while Rahm and Obama are choking off openness and transparency. Use the Johnsen nomination as a bone to the liberals and simultaneously use it as cover to betray them with the opposite of what Dawn Johnsen stands for. A perfect political scam on the liberal base who was so thrilled with the nomination of a honest rule of law advocate for the Constitution like Dawn Johnsen. Liberals should have known better, but that is just not who Barack Obama and Rahm Emanuel are.

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

In the end, it is likely Barack Obama, Rahm Emanuel and the servants of the status quo simply did not really want a true advocate for governmental transparency, a critic who excoriated Bush/Cheney policies on warrantless wiretapping, torture, indefinite detention, ignoring international treaties and conventions, and concentration of power in a unitary executive; all policies the Obama Administration has substantially co-opted as its own. So Dawn Johnsen was a pawn, a shiny object, catnip for a desperate liberal base; but in the end, as always, Barack Obama and Rahm Emanuel just didn’t really care about their liberal base who put them in office.

There is a lot of detritus in the wake of the Obama White House duplicity on the Dawn Johnsen nomination. They humiliated Dawn Johnsen by letting her twist in the wind, wasted a year of her life, disrupted the faculty and student body of the Indiana University School of Law and sold out a huge block of liberal and progressive voters who were the very voters and ground organizers carrying Obama to election in the first place.

Barack Obama and Harry Reid owe an explanation to both Dawn Johnsen, and the voters who worked so hard to elect them, as to why they intentionally left Johnsen’s critical nomination out in the cold so long, and then killed it outright. The main media in the United States owe their readers the duty to ask the questions and demand answers. That much, at a minimum, is owed to the citizens.

Barack Obama first announced his intention to nominate Dawn Johnsen, a distinguished lawyer, professor of Constitutional law and former AAG in the Office of Legal Counsel for the DOJ, to be his head of the supremely critical Office of Legal Counsel nearly one year ago on January 5, 2009. Ms. Johnsen is eminently qualified and one of the best selections Obama has made for any position in his administration. In spite of that fact, Barack Obama and Harry Reid have callously and shamelessly left her twisting in the wind and have refused to put any emphasis or effort in forcing her confirmation. It is one of the greatest unpublicized scandals of an increasingly feckless Obama Presidency.

As recently as the end of November, there were promises that the Senate would take up Dawn Johnsen’s confirmation as soon as they were done with the healthcare bill. Well today, after patting themselves on the back for passage of the Bailout For Health Insurance Corporations Bill, the United States Senate managed to confirm thirty four (34) Obama nominees. None of them, of course, are Dawn Johnsen. Still she waits.

Here is a list of nominees that Hanoi Harry Reid, and without any question Barack Obama himself, since he will not lift a finger to help, think are more important than installing the head of the Office Legal Counsel, to oversee reformation of the rotting festering hole that produced the torture and wiretapping crimes of the previous administration:

• Paul Anastas to be Assistant Administrator for the Office of Research and Development at the Environmental Protection Agency

• Robert Perciasepe to be Deputy Administrator of the Environmental Protection Agency

• Miriam Sapiro to be a Deputy United States Trade Representative, with the rank of Ambassador

• Thomas Alfred Shannon to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Federative Republic of Brazil

• Alan Solomont to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Spain, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to Andorra.

• John Norris to be a Member of the Federal Energy Regulatory Commission for the remainder of the term expiring June 30, 2012

• Dolly Gee to be United States District Judge for the Central District of California

• Richard Seeborg to be United States District Judge for the Northern District of California

• Sharon Lubinski to be United States Marshal for the District of Minnesota for the term of four years

• Mary Phillips to be United States Attorney for the Western District of Missouri for the term of four years

• Sanford Coats to be United States Attorney for the Western District of Oklahoma for the term of four years

• Stephen Smith to be United States Marshal for the Southern District of Georgia for the term of four years

• Scott Quehl to be Chief Financial Officer and Assistant Secretary of Commerce for Administration, Department of Commerce

• Rajiv Shah to be Administrator of the United States Agency for International Development

• Mary Warlick to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Serbia

• James Warlick, Jr. to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Bulgaria

• Eleni Kounalakis to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Hungary

• Leslie Rowe to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Mozambique

• Alberto Fernandez to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Equatorial Guinea

• Mary Wills to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Mauritius, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Seychelles

• Anne Andrew to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Costa Rica

• David Nelson to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Oriental Republic of Uruguay

• Richard Callahan to be United States Attorney for the Eastern District of Missouri for the term of four years

• John Gibbons to be United States Marshal for the District of Massachusetts for the term of four years

• John Kammerzell to be United States Marshal for the District of Colorado for the term of four years

• Adele Alexander to be a Member of the National Council on the Humanities for a term expiring January 26, 2014

• Lynnae Ruttledge to be Commissioner of the Rehabilitation Services Administration, Department of Education

• Grayling Williams to be Director of the Office of Counternarcotics Enforcement, Department of Homeland Security

• Michael Khouri to be a Federal Maritime Commissioner for a term expiring June 30, 2011

• David Strickland to be Administrator of the National Highway Traffic Safety Administration

• Mark Martinez to be United States Marshal for the District of Nebraska for the term of four years

• Michael Cotter to be United States Attorney for the District of Montana for the term of four years

• Barbara McQuade to be United States Attorney for the Eastern District of Michigan for the term of four years

• James Santelle to be United States Attorney for the Eastern District of Wisconsin for the term of four years

• Christopher Crofts to be United States Attorney for the District of Wyoming for the term of four years

There seems to be no end to the duplicitous clean livers that are hiding cirrhotic private lives and peccadillos. Now, if you ask me, no one should be all that shocked Tiger Woods prowls like a big cat. He has been known to feel a kinship and run with Michael Jordan and Charles Barkley pretty much since he left Stanford for the bright lights and big city attractions of the PGA traveling circus. Tiger didn’t want to be like Mike, he already was like Mike. The “right stuff” that makes the greatest athletes stand out above the mere all stars and all pros generally comes with a healthy quotient of carnivore like killer instinct and desire.

But the discovery that a holier than thou condescending family values prairie dweeb like Max Baucus (R-Dentalflossville) is footing the shack up of his latest shag, well that is a whole nuther thing. Who knew Max chased the skirts and dental floss just like those hedonists in California? And considering the Max Tax concubine was, at least for a while, one of his staffers, there is of course some relief it was not an intern. So he has got that going for him I guess.

Before the moment that is the Passion Of Max fleets from memory though, let the proletariat he arrogantly betrays daily in his day job as an elected representative of the people, nation and the collective interest not be lost as to the real upshot. But lost it will be if left up to the puerile panty sniffers in the main stream political media. For instance those deer hunting manly men over at Politico have two stories on their front page (here and here) on the Max Tax plan to boost his squeeze with an elite appointment to a coveted US Attorney position and, yet, not one mention of the hypocrisy exhibited by the revelation as framed against the Baucus constant braying for fiscal responsibility and reticence to provide a health care bill covering women equally and fairly. Go figure.

As an extra Late Night bonus, check out this story of the evil terrorist Christmas elf:

A man dressed as an elf is jailed after police in Georgia say he told a mall Santa that he was carrying dynamite.

Police say Southlake Mall in suburban Atlanta was evacuated but no explosives were found.
…
Police say Caldwell got in line Wednesday evening to have his picture taken with Santa Claus.

Police say when Caldwell reached the front of the line, he told Santa he had dynamite in his bag. Santa called mall security and Caldwell was arrested.

Caldwell faces several charges, including having hoax devices and making terrorist threats.

Awesome.

In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Royce Lamberth, former Chief Judge of the FISA Court, for dishonesty in state secrets assertion declarations, the government is not only trying to wipe that away in Horn v. Huddle, but suddenly seems to be somewhat apoplectic about their acknowledged “inaccuracies” in their previous state secret submissions to Judge Walker in al-Haramain.

Funny how after Eisenberg included a little footnote about the ever slow dribbling out of corrections of “inaccuracies” by the recalcitrant government in al-Haramain in his reply brief on Motion For Summary Judgment:

In addition to the gradual public disclosure of non-classified evidence of plaintiffs’ electronic surveillance, something else of note has happened since the Ninth Circuit proceedings: On February 27, 2009, defendants filed classified declarations with this Court purporting to “address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.” Government Defendants’ Report On Declassification Review at 2, Doc. #78 at 2. This “inaccuracy” remains a mystery to plaintiffs, who have not yet had access to those classified filings. But if the inaccuracy amounts to a misrepresentation, the Court should find that defendants have forfeited judicial deference to their assertion of the state secrets privilege. See Horn v. Huddle, ___ F.Supp.2d ___, ___ (2009 WL 2144131 at *4) (D.D.C. July 16, 2009) (court refuses to give “a high degree of deference” to of government’s “prior misrepresentations regarding the state secrets privilege in this case”).

the government is all of a sudden beside themselves and running to settle Horn v. Huddle, trying to clean up their dishonest mess in their al-Haramain declarations and desperately trying to circumvent Vaughn Walker. Kind of makes you wonder what the inaccuracies are, and how egregious they are, to motivate such clumsy tap dancing by the DOJ.

What a shock, the government now wants to clean things up a little more when, but only when, their ass is in the wringer. So worried in fact that they decided to bypass, and completely insult, Judge Walker, and the attendant possibility that he would take a cue from Judge Lamberth, be taken aback by the DOJ contrivances and shenanigans, and order disclosure to al-Haramains’ attorney Eisenberg. Instead, they contrived the disingenuous artifice of going straight to the 9th. A court that has no current jurisdiction. In a 2006 appellate case that has been long closed.

Eisenberg, on behalf of al-Haramain, is having none of it, and has already filed a Motion To Strike the government’s filing.

This Court should not allow a filing or lodging in a case where the Court’s appellate jurisdiction is terminated.

Even more significant is the dead on description of what the government is trying to pull with their stunt:

Another reason why this Court should strike DNI Blair’s secret declaration is that it is not currently before the district court, as Judge Walker has not yet ruled on defendants’ request for permission to submit the declaration in the district court ex parte and in camera. In effect, by lodging the declaration in this Court now, in advance of the appeal that is sure to follow Judge Walker’s final judgment in thiscase, defendants have unilaterally enlarged the future record on that appeal to include material that is not yet and may never be before Judge Walker. This maneuver violates the general rule precluding enlargement of the record to include material that was not before the district court.

By lodging DNA Blair’s secret declaration in this Court at this time, defendants are attempting to perpetrate a subterfuge by which they would bypass Judge Walker, subvert his June 5, 2009 order that further secret filings by defendants will be disclosed under a protective order to plaintiffs’ security-cleared counsel, and create a bizarre situation where this Court would have exclusive access to evidence not presented to Judge Walker or accessible to plaintiffs’ security cleared counsel pursuant to Judge Walker’s order. This Court should not countenance such gamesmanship. (Citations omitted)

Indeed, the 9th Circuit should definitely not countenance such raw and disingenuous gaming of the courts by the government. And neither should Judge Vaughn Walker.

The too cute by a half games and hide the ball schemes by the Department of Justice, whether under Bush or Obama, just never stop. If it were not for disingenuous lawyering, the DOJ would have no lawyering at all it seems.

The state secrets doctrine was born on the wings of fraud and lies by the US government in the case of US v. Reynolds in 1953. As Congress struggles to rein in the unbridled use of the doctrine to cover up illegality by the Executive Branch (see here, here and here), it is a good idea to keep focus on just how addicted the Executive Branch has become to this unitary ability to quash inquiry into their malfeasance.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out how the DOJ unethically failed to cite to the court directly adverse authority to their arguments in seeking to vacate the previous opinions.

The purpose of this brief is to apprise the Court of legal authorities – as to which the United States’s vacatur motion is silent – that are directly adverse to the United States’s position and support this Court’s denial of the motion.
….
The United States contends there is “minimal” value in leaving this Court’s opinions “extant,” because they are interlocutory and thus are “non-precedential.” See United States’s Motion, Dkt. #508, at 6. But a district court’s interlocutory opinions, while lacking precedential value, are hardly valueless. In Fraser, 98 F. Supp. 2d at 791, the court refused vacatur of opinions concerning interlocutory issues because “there can be little doubt that, like the appeals court opinion in Bancorp, opinions on such matters are a valuable resource for litigants and courts,” especially where the opinions address “questions of first impression.”

That is the situation here. The opinions that the United States wants vacated concern questions of first impression – whether a district court may decline to give a high degree of deference to an assertion of the state secrets privilege where the government has previously made misrepresentations to the court regarding the privilege (the opinion of July 16, 2009), and whether a district court may decide whether counsel who have been favorably adjudicated for access to classified information have a “need to know” the information within the context of pending litigation (the opinion of August 26, 2009). The opinions will be a valuable resource for litigants and courts as these issues arise in other cases. In fact, the opinions have already proved to be a valuable resource in Al-Haramain Islamic Foundation, Inc. v. Obama, where the plaintiffs (amici curiae in the present case) have cited them in briefing on a pending motion for partial summary judgment. See Al-Haramain Islamic Foundation, Inc. v. Obama, MDL Docket No. 06-1701 VRW (N.D. Cal.), Plaintiffs’ Reply to Government Defs.’ Opp. to Pls.’ Motion for
Partial Summ. Judg., Dkt. #104, at 13 n. 2 & 17 n. 3.

Get that? After perpetrating a fraud on Judge Lamberth’s court, and being caught redhanded, the Obama DOJ files a brief that fails to disclose directly adverse authority, which is fundamentally unethical. It never stops on the pernicious dishonesty and outright fraud when the government is involved in state secret assertions; that was the case in the outset with US v. Reynolds, and that is the case now.

And you have to wonder why, at this point, Judge Lamberth would possibly be interested in granting the government’s wish to wash their hands here. It was Judge Lamberth, and his court, the fraud was directly perpetrated on, and that is the very conduct seeking to be escaped from by the settlement and motion to vacate. If not for having been caught, the fraud would still be ongoing. Justice, and the sanctity of the court, require Judge Lamberth to leave those opinions in place (not to mention the authority Eisenberg cites in the amicus filing); it would not be right to give the government the ability to wash away the opinion record of such outrageous perfidy when other litigants across the country are facing potentially similar circumstances.

Judge Lamberth should leave his opinions in place and let them have whatever value they may for other litigants, as a message to Congress, and, most of all, support for other judges, like Judge Vaughn Walker, trying to wrangle with an obstreperous and obstructionistic Department of Justice and US government. Quite frankly, after all the disingenuous conduct perpetrated by the DOJ in covering up the violations of the executive branch, the court should still impose stiff sanctions on the government as was being contemplated by the court in Horn v. Huddle before settlement; but, at a minimum, the court should send a message that such conduct will not be tolerated by leaving its opinions in place and in force.

Harry Reid is in trouble in his reelection effort in Nevada. From the Las Vegas Review-Journal’s report on a new poll by Mason Dixon:

Nevadans say they’re ready to replace longtime Democratic incumbent Sen. Harry Reid with an untested Republican.

Which Republican? Undecided.

But of their top two picks — former GOP party official Sue Lowden and real estate developer Danny Tarkanian — either one would unseat Reid if the election were held today, according to a poll commissioned by the Review-Journal.

Lowden and Tarkanian are in a statistical tie atop a list of nine primary candidates, according to the survey of Nevada registered voters.
…
In one general election scenario, 49 percent of respondents picked Lowden and 39 percent chose Reid. In another, 48 percent picked Tarkanian to 43 percent for Reid. That poll, which surveyed 500 voters Tuesday through Thursday, has a margin of error of plus or minus 4.5 percentage points.

In Clark County, where Reid needs to dominate to win another term, he is in a statistical tie with either Lowden or Tarkanian.

“That is the bad news,” UNLV political science professor David Damore said of Reid’s Clark County numbers. “That tells you there is a disaffected base there.”

For months the perception of Reid among voters has been fixed, with near 100 percent name recognition and a high number of voters viewing him unfavorably. In the latest poll, 38 percent of voters viewed Reid favorably compared to 50 percent with an unfavorable view.

Chris Cillizza, the David Broder wannabe and heir apparent, draws the knee jerk Villager conclusion that Reid’s troubles result from Nevada voters viewing him as too liberal and carrying too much water for Barack Obama.

But Cillizza typically ignores that Barack Obama won Nevada over McCain by a huge margin, 55% to 43% ten short months ago. And Cillizza ignores that Nevada is populated by a huge community of service employees in the Las Vegas and Reno metropolitan areas, and generally a poor to middle class populous in the remaining areas, all of whom are dying for healthcare reform and relief. It is not that Democratic votes are not there for Reid; it is that Nevadans are fed up with his inability to get the things done that they want, and healthcare with a strong public option that will actually help them, is undoubtedly the leader in their clubhouse of reasoning.

The depth of Reid’s problem should not be underestimated. Nor should the challenge of Republican businessman Danny Tarkanian. Tarkanian grew up in Las Vegas, was a top student and Rhodes Scholar candidate, and was point guard on the first of the famous UNLV Runnin Rebel basketball teams that held forth for the better part of two decades at or near the top of the NCAA standings. Oh, by the way, those famous UNLV teams were coached by Danny’s father Jerry “Tark the Shark” Tarkanian, probably the most beloved name in Nevada sports history. Tarkanian’s mother was a Las Vegas City Councilwoman and active philanthropist. The guy has some serious juice from his name and background and will get major support from the GOP assuming he continues to climb in relation to GOP official Sue Lowden, which he is expected to do.

The conclusion here is that Reid has serious problems and they are of his own making. Unless Reid gets with the program, exercises some party discipline from his Majority Leader position and starts working earnestly for the causes, first and foremost the strong public option, of Democratic voters, he will not get any support from the activist base. As Jane Hamsher says:

There are 51 Senators who will vote for a public option, something 77% of the country wants. It would win a majority in a floor vote. We were told that we needed 60 votes in the Caucus so we’d have a filibuster-proof majority — so that the GOP would never block a bill from getting to the floor. The only reason not to put the HELP Committee public option in the Senate bill is because Joe Lieberman and other “ConservaDems” are conducting a silent filibuster — they won’t say it publicly but they’ll say privately that they will vote with the GOP to filibuster the bill.

That means the Democratic caucus will now filibuster itself.
…
Either you’re going to enforce caucus discipline or you don’t have a party. You have instead a collection of self-interested narcissists, each one with the ability to derail any legislation they don’t like. Every Senator who derives their political power from membership in the caucus is thereby granted the power to torpedo any piece of legislation from coming to a vote, with no consequences. It’s an outrage.
…
So if Reid won’t enforce caucus discipline, if as Majority Leader he now says it’s acceptable to use the “60 vote” threshold to water down the bill, he has to wear it. No matter how he votes personally. No matter how much the White House makes a fetish of bipartisanship and courts Olympia Snowe. No matter what cover anyone else tries to give him.
…
I don’t care if we have to recruit a Democratic primary challenger. Maybe someone from the Culinary Workers? I don’t care it we have to blitz the Nevada airwaves with ads about Reid’s coziness with DC lobbyists, or maybe how his son — who is running for Governor — just sits back while his father adds $2000 a year to Nevada health insurance premiums at their behest. And I sure don’t fucking care if Danny Tarkanian becomes the next Senator from Nevada, because at that point 60 votes don’t mean anything anyway.

And that, as Walter Cronkite would say, is the way it is. Harry Reid needs to wake up and get with the program the voters overwhelmingly want; if he doesn’t, he is going to be sucking on a wet towel by himself out in his trailer in Henderson. Sucking on a wet towel is what Tark the Shark was famous for (along with fast, exciting and winning teams); wouldn’t it be ironic if Tark’s son is the one who sent Hanoi Harry Reid to that ugly end of the road?

It was only a few days ago we learned Teddy Kennedy was thinking about his succession for his long held Senate seat from Massachusetts. The day has come too soon.

Senator Edward M. Kennedy has passed. "Teddy" was the senior Senator from Massachusetts and has so served in office since November 1962. Kennedy was in his eighth full (and ninth overall) term in the Senate and was the second most senior member of the Senate and the third-longest-serving senator of all time.

Senator Kennedy was born on February 22, 1932 and passed on August 25, 2009 at age 77 at his family home at Hyannis Port Masachusetts.

From Reuters:

One of the most influential and longest-serving senators in U.S. history — a liberal standard-bearer who was also known as a consummate congressional dealmaker — Kennedy had been battling brain cancer, which was diagnosed in May 2008.

Known as "Teddy," he was the brother of President John Kennedy, assassinated in 1963, Senator Robert Kennedy, fatally shot while campaigning for the 1968 Democratic presidential nomination, and Joe Kennedy, a pilot killed in World War Two.

UPDATE: Boston Globe: Statement from the Kennedy Family

"Edward M. Kennedy — the husband, father, grandfather, brother and uncle we loved so deeply — died late Tuesday night at home in Hyannis Port.

"We’ve lost the irreplaceable center of our family and joyous light in our lives, but the inspiration of his faith, optimism, and perseverance will live on in our hearts forever.

"We thank everyone who gave him care and support over this last year, and everyone who stood with him for so many years in his tireless march for progress toward justice, fairness and opportunity for all.

"He loved this country and devoted his life to serving it.

"He always believed that our best days were still ahead, but it’s hard to imagine any of them without him."

UPDATE #2: Here is the full New York Times obituary, and it is very thorough.