November 04, 2005

Bush Will Pardon Libby

I am pleased to reprint here, as guest editorialist, Bob Warren, who publishes a weekly letter called The Old Pessimist. Bob refers to himself as a "Sixties-style, knee-jerk, bleeding heart liberal Democrat, disillusioned and bloodied, but still standing." He is also a retired attorney living in Santa Fe, New Mexico.

Bob's intriguing and well argued ideas include: a prediction that Alito will be appointed (with no filibuster) to the Supreme Court, although perhaps not by as big a margin as Roberts; that both Roberts and Alito, while dyed-in-the-wool conservatives, will not vote to overturn Roe v Wade; and that Scooter Libby will probably do short time and be pardoned by President Bush, although he does admit additional prosecutions are possible.

From The Old Pessimist
Volume 31, 2005
November 2, 2005

Dear Readers:

Interesting times that we live in, huh? The Old Pessimist and his Missus will disappear from the current scene for ten days beginning Saturday, heading to Churchill, Manitoba on the edge of Hudson Bay for the great annual gathering of the polar bears. They return on 11/14, assuming that someone or something has not contrived to make the OP a permanent part of the artic landscape. As he departs, some thoughts:

First: By the beginning of December, no one will remember who Harriet E. Miers is or was. The Dubya did her and her country a disservice by attempting to slip her on to the United States Supreme Court, thinking that by spending a bit more of his vaunted political capital no one else would notice. To the extent that anything inside the Beltway is predictable, her prompt withdrawal for the nomination process was entirely foreseeable, if not actually inevitable. Good-bye Harriet and take good care. For the near-term, at least, you remain one of the most influential people in America, male or female. Counsel and confidant to PROTUS has its considerable advantages and you appeal to the OP as someone much more comfortable in background (not to say the shadows) than in the spotlight.

Second: By the first of December, most people in America who know anything about anything will know who Samuel A. Alito, Jr. is. Love his basic conservative judicial philosophy (read non-activist) or hate it, the OP will go out on a limb and predict that he will be confirmed as the next associate justice of the Supreme Court. He will not garner as many votes as did John G. Roberts, the new Chief Justice, and his confirmation will likely not be a love fest, but the vote won’t be close and there will be no filibuster. His confirmation, following fast upon that of Roberts, will almost certainly mean that the U.S. Supreme Court will turn to the right, away from the unsteady centrist position that mostly has characterized it for the past dozen years or so. But, Dear Readers, what did you expect, given who is doing the nominating?

Roberts and Alito are two extraordinarily bright, perhaps even brilliant men, and both are seasoned jurists (Alito has been involved in more than 1,500 cases during his 15 years on the Third Circuit Court of Appeals, and has authored approximately 300 rulings). That they are of a conservative bent is a given; that they are anything approaching ideologues is not a given and is the worst kind of conjecture. The OP will say about both of them what he earlier said about Roberts alone (for which, he is quick to add, he took an incredible amount of flack from his readers) — he is relieved by the quality of the nominations and, all things being equal, which of course is decidedly not the case, he’s satisfied with the results; in Alito’s case, even before the results are realized. Just remember Clarence Thomas --- shudder! One must, after all, measure events within context.

In passing: The OP will go even further out on the limb and predict that the substantive holding in Roe v. Wade, upholding a woman’s right to decide for herself whether or not to have an abortion, is not in mortal danger. It may become a bit more contained, a bit more nuanced, but it will not be seriously undermined, let alone overturned.

Third: With the Alito nomination, The Dubya seemingly announced to the nation that with Ms. Miers he’d exhausted the list of American women highly qualified to sit on the United States Supreme Court. For the reasons pointed to in Column #29 (10/23/05), the OP insists on maintaining that the seat held by Sandra Day O’Connor, the first woman appointed to the Supreme Court, is territorial in nature, i.e., it is gender sensitive and belongs to a woman. The botched Miers’ nomination may have led to an acceptable second nomination, whatever Alito’s views, but it was made at the expense of every woman in America. If I were able to pry into the back of The Dubya’s beady little brain, I’d bet the mortgage that he convinced himself that Harriet’s defeat was based not on quality-for-high-office, but on her gender – and he wasn’t about to make the same ‘mistake’ twice. So much for small minds. Shame on you, Mr. President.

Fourth: The Scooter (it’s difficult to imagine a person with his clout and long reach walking around for his entire life handicapped with that name – why not just call him BananaHead or something equally colorful?). One way or another, he’s toast.

As I wrote to a colleague immediately after Patrick Fitzgerald’s one and only press conference last Friday, (a) I wouldn’t want to be in this guy’s prosecutorial cross-hairs for love nor money, and (b) his presentation at his sole public performance was stirring enough to have made the OP proud to once have been a member of the legal profession. So, what will happen? Below, a portion of an e-exchange with a fellow former lawyer over the weekend:

“Well, I do NOT think that Fitzgerald will let him cop a plea without coughing up the goods on the rest of 'em . . . he'll go trial before he does that.

“Since motive goes to the heart of the matter, I don't think that the defense team and/or the White House could keep the trial contained as one based on 'technicalities' . . . Fitzgerald as much as said so yesterday. If the Scooter is gonna defend himself, there are gonna be a whole lot of 'whys' as to various of his actions.

“If he does fall on his sword, accepts a guilty plea with no quid quo pro, and Fitzgerald makes the right appeal to the trial judge, that little sucker could end up doing six or seven years of real time.

“I think that Bush would pardon him in a heartbeat . . . I can hear the rhetoric now. He'd have very, very little to lose.”

The Old Pessimist’s prediction? The Scooter will take his lumps, maybe spend a couple of months in the can, and then be pardoned by The Dubya. Ya heard it here first. (It goes without saying, that the longer that Libby can postpone the moment of judgment, the later in Bush’s term that comes to pass, the less the cost to The Dubya . . . that way he could conceivably pull a Slick Willy and pardon his Veep’s principal minion on his last day in office. The OP does not, repeat, not believe that Fitzgerald will allow a protracted delay to occur. Unless The Scooter caves and all hell breaks loose, the OP predicts that his prosecution will be completed by June 31, 2006 at the latest.)

A caution: before any of you, Dear Readers, entirely discounts the notion that Libby could break this thing, and this Administration, wide open, please remember that R. Milhous Nixon originally dismissed the Watergate fiasco as a “third rate burglary.” Complicity to bring about an unwarranted war reaches well beyond the ‘high crimes and misdemeanors’ that Nixon was held accountable for. And it ain’t the equivalent of sex-under-the-desk in the Oval Office either. It’s m-u-r-d-e-r, plain and simple. Will Plamegate lead to the impeachment of the Veep or his Boss? Not likely. Will it lead to the prosecution of further individuals? The OP bets 2-to-1 in the affirmative on that one. He is convinced that Mr. Fitzgerald is holding back the second shoe. Like the effect of a single bullet in a loaded gun, the threat may be more compelling than the fact behind it. It may only be wishful thinking, but the OP believes that Rove is a long, long ways from being home free. Meanwhile, there’s Libby, twisting slowly, painfully in the wind. The war over the war in Iraq has entered a new phase.

Finally . . . let’s hope that sometime soon the Democrats get their act together. Now’s the time. What the hell are they waiting for?

The Old Pessimist

Robert A. Warren
Santa Fe, NM

If you would like to write to The Old Pessimist or ask to be put on his distribution list, email him at

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