As TalkLeft noted here, Rudy Giuliani has feverishly promised, if elected, to appoint "strict constructionist" judges in the mold of Justice Scalia. Yesterday he went so far as to argue that judges who are not "strict constructionists" threaten American democracy.

There are at least a couple of serious flaws in Giuliani's argument. First, Justice Scalia disagrees with him. From Justice Scalia's writings:

I am not a strict constructionist, and no one ought to be.... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.

Second, adherents to the "strict constructionist" philosophy do not typically believe that the Constitution protects the right to make a decision about abortion without unwarranted governmental interference. So how does Giuliani reconcile his desire for "strict constructionist" judges with his belief that the Constitution protects that right? He doesn't.

He was asked at the news conference to explain how he could support reproductive rights but at the same time promise to install justices whose strict constructionist views could threaten the landmark Roe v. Wade decision that established a constitutional right to an abortion.

He never answered directly.

It has long been my view that the Senate should ask specific questions of the views of SCOTUS nominees. They should be able to ask "do you believe Roe v. Wade should be overturned?" If the nominee chooses not to answer a question like that, then Senators should vote no on that nominee, or table the nomination until he/she does answer the questions. It seems Senator Specter is moving towards that view:

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation. Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate. "There are things he has said, and I want to see how well he has complied with it," Specter said, singling out Roberts. . . . Specter, the ranking Republican on the Judiciary Committee, who served as chairman during the hearings, said he wants to examine whether Roberts and Alito have "lived up" to their assurances that they would respect legal precedents.

Obviously Roberts created a false impression. But the Senate Judiciary Committee allowed that impression because they allowed the White House to stonewall its document requests and for Roberts to avoid answering specific questions. A lesson is learned? Doubtful but good to see the question asked. More.

It begins:

The House Judiciary Committee voted today to issue contempt citations for two of President Bush's most trusted aides, taking its most dramatic step yet towards a constitutional showdown with the White House over the Justice Department's dismissal of nine U.S. attorneys. The panel voted 22-17, along party lines, to issue citations to Joshua B. Bolten, White House chief of staff, and Harriet E. Miers, former White House counsel. Both refused to comply with committee subpoenas after Bush declared that documents and testimony related to the prosecutor firings were protected by executive privilege.

More.

With an IQ in the 50’s, Floyd Brown, who can’t spell his own name, couldn’t have produced the confession that purportedly links him to a murder. He says the police pounded on a table and yelled at him until he signed it.

No physical evidence ties Brown to the crime, notwithstanding unethical police efforts to manufacture evidence against him.[More ...]

I'm off to the airport for a hearing in another state tomorrow. See you all back here Friday. Here's an open thread.

Too funny. The D.E.A. has hired a company to improve its website and may include a blog.

[DEA] has also asked Adfero to create an interactive Web site that will include blogs and virtual tours of the museum. Right now, the only Web site that exists is a page about the museum on the DEA Web site. Plans to include a blog and a speaker's bureau are also under discussion.

If the Museum is news to you, here's more about it. If you want to see for yourself, go here.

The Washington Post reports that President Bush is the most unpopular president "in the history of modern polling" with the exception of Richard Nixon.

Bush's disapproval rating is now at 65%. Nixon's, 4 days before his resignation, was 66%.

The historic depth of Bush's public standing has whipsawed his White House, sapped his clout, drained his advisers, encouraged his enemies and jeopardized his legacy. Around the White House, aides make gallows-humor jokes about how they can alienate their remaining supporters -- at least those aides not heading for the door. Outside the White House, many former aides privately express anger and bitterness at their erstwhile colleagues, Bush and the fate of his presidency.

As for his plans for the rest of his term:

Big Tent wrote yesterday about Tuesday night's debate between Bill O'Reilly and Hillary Clinton's communications director, Howard Wolfson.

Crooks and Liars has the video. The You Tube version is here.

Peter Daou, Hillary's Internet Communications Director, has a post-show diary on Daily Kos pointing out this statement by Wolfson:

"I think it's unfortunate that in the last week or so you have cherry picked some comments on the Daily Kos site that you or I or others might find objectionable and decided to smear an entire community - hundreds of thousands of people who go to the site every day, who talk to one another, who participate vigorously in our democracy; and you are urging Democratic presidential candidates to stay away from their yearly conference. And unfortunately with all due respect for you, the days where you can dictate where Senator Clinton and other Democrats go, who we talk to, are over.

I'm getting excited about Yearly Kos. I'll be there for all of it. If you can't make it, you can still watch and participate through Second Life. The sign-up sheet is here.

So many readers responded by comments and e-mail to my Powerbook woes and request for help getting a new Macbook with helpful hints on how to save a failed hard drive, select a back-up system and transfer music and video files from an iPod to a new computer, and with donations, I thought I'd post a follow-up.

Things are looking up. Here's what happened.

After receiving the failed diagnosis from the Genius Bar at the Apple store on Sunday, I took the Powerbook in to the local authorized Apple repair shop on Monday. Hard drive failure diagnosis confirmed.

The options were: Buy a new hard drive and have them install Tiger on it and transfer the music and videos from the iPod to the new hard drive, for a cost of $400 (and maybe throw in a few hundred more for additional memory since the Powerbook only had 512 mb memory and then think about still more for an external hard drive).... or give them the Powerbook and they'd give me $400 for it, which I could then put to the cost of a new Macbook.

More...

More from the CRS Report on Congress’ Contempt Power:

The Position of the Department of Justice on the Use of Inherent and/or Criminal Contempt of Congress Against the Executive Branch

The Department of Justice (DOJ) has taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena. This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s, and has been the basis of several recent claims with respect to pending congressional investigations.

. . . The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress’s inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority:

We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent “civil” contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential claim of executive privilege. The legislative history of the criminal contempt statute indicates that the reach of the statute was intended to be coextensive with Congress’ inherent civil contempt powers (except with respect to the penalties imposed). Therefore, the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.

Okay. Bush has adopted the Ted Olson reasoning. But can the President do anything about it? Let's discuss on the flip.

Via Marty Lederman and scotusblog, the Congressional Research Service has just issued a comprehensive report on the Congress' contempt power. Of especial interest to today's controversies are the discussions of Congress' power to investigate abuse and fraud and the inherent contempt power. On investigations of abuse and fraud, such as the US attorney firings, the report states:

Congress’s power “to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” The Court did not limit the power of congressional inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, the Court stated, “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.” “[T]he first Congresses,” held “inquiries dealing with suspected corruption or mismanagement by government officials” and subsequently, in a series of decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered.” Accordingly, the Court now clearly recognizes “the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.”

(Emphasis supplied.) In the US attorneys firings scandal, the Congress' investigative power is at its zenith while the President's claim of executive privilege is at its ebb as it does not involve a question of national security. It does not even inolve communications with the President. Isn't it obvious why White House counsel Fred Fielding wants no part of a court adjudication of this dispute? Because he is sure to lose. More.

TPM Muckraker:

Tom Daschle, the former Senate Democratic leader who received briefings on the Bush administration's warrantless surveillance programs, says Alberto Gonzales isn't telling the truth about what Senate and House leaders were told in March 2004 about the program's utility and legality.

. . . It was only after a briefing for the so-called "Gang of Eight" bipartisan congressional leaders demanded that the program continue, Gonzales said, that he and then-White House chief of staff went to "inform" Ashcroft of the Gang's wishes.

. . . Daschle was one of that Gang of Eight:

"I have no recollection of such a meeting and believe that it didn't occur. I am quite certain that at no time did we encourage the AG or anyone else to take such actions. This appears to be another attempt to rewrite history just as they have attempted to do with the war resolution."

Daschle's statement bolsters one that his former Gang of Eight colleague, Senate intelligence committee chairman Jay Rockefeller (D-WV), gave to Dan Eggen of the Washington Post: Gonzales is "once again is making something up to protect himself," Rockefeller said.

Ooops. There really is no excuse not to impeach him.