The specious argument du jour against a filibuster being used to defeat judicial nominees is that because it requires sixty votes, it is unconstitutional because it goes beyond what the Constitution says the Senate is required to do in confirming nominees.  As far as I can tell, these jokers think that the Constitution says that confirmation occurs with a majority vote of senators.  Sadly, No! 

Article II Section 2 says the following:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States

Nowhere does the Constitution define "advice and consent of the Senate" as a majority vote.  Indeed, the Senate could define "advice and consent" to mean whatever it wanted, including a unanimous vote.  Try that one on for size.

Now I expect most wingnut bloggers to avoid reading the Constitution unless forced to do so in school.  However, I do expect Glenn Reynolds, a law professor at the University of Tennessee to read it.  Yet, I see him on Instapundit repeating the same trash.

I am loath to accuse the good professor of being disingenuous.  But I find it hard to believe that he didn't act like a good lawyer and read the Constitution before asserting that Senator Boxer was arguing to change the Constitution.

The former Oakland A's star will join a number of other past and present MLB players before a congressional committee investigating steroids in baseball.  On Wednesday, Canseco's request for immunity from prosecution was denied.  According to a spokesman for committee chairman Tom Davis, no witnesses have been or will be granted immunity.

This statement from Congressman Davis' camp begs the question: Why bother to subpoena past and present MLB stars if they will predictably invoke their Fifth Amendment rights?  To what purpose does this serve?

The answer is simple.  Congress is not particularly interested in the juicy details of who injected whom with what; they can pick up a copy of Canseco's book for that information.  What Congress can accomplish today is to force multi-millionaire athletes to invoke their Fifth Amendment rights before the world and thus behave like common criminals.  Because no matter how much Americans claim they honor and revere the Constitution and the Bill of Rights, the simple fact is that most people conclude that if a person invokes the Fifth Amendment, he must have something to hide.

If Mark McGwire, Rafael Palmeiro, Curt Schilling, and others refuse to answer any of the committee's questions, then Congress has won the first battle toward forcing Major League Baseball to adopt a drug testing policy with teeth.

War on Terror, bah! Amid the recent Mad Tea Party appointments of John Bolton and Paul Wolfowitz to the U.N. and World Bank respectively comes this Bush masterstroke. Because we all know how good terrorists have been at running things in the Middle East:

"Tuesday, March 15, 2005, WASHINGTON (CNN) -- President Bush on Tuesday expressed the hope that Hezbollah -- which the U.S. State Department has long regarded as a terrorist group -- could enter the political mainstream in Lebanon."

Bin Laden, get your suit pressed and polish up your resume -- again.

Seven Dwarfs = Gay Lifestyle.  I kid you not: (From Chicago Tribune, Registration Required).

When Marshall Field's employed a Snow White and the Seven Dwarfs theme for its 2004 holiday festivities, the Chicago-born retailer received some complaints that it was promoting the homosexual lifestyle, an executive said recently.

The concerned citizens divined that there was a "hidden gay agenda" in Field's theme "because seven men were living together," Gregory Clark, vice president of creative services for Field's in Minneapolis, recounted last month at a Retail Advertising & Marketing Association conference in Chicago.

I don't make this up people.

Here in D.C. all of the signs of a terror alert are upon us.  Bush's standing in the polls on a major issue is plummeting, and Fox 5 with our broadcast of 24 we are getting terrorism teasers for the 10 O'Clock News.

From the Instapundit, Glenn learns why maybe blaming a particular sect or creed or any one type of a religion for actions taken by members of that religion doesn't work.:

APPARENTLY, I'M INSUFFICIENTLY PRO-WAR, according to a reader from, of all places, Canada:

Tell your readers why the following can't impact on your Bush-spin sotted brain: respect for freedom of conscience does not negate contempt for the unconscionable. Islam is the most perfected form of tyranny ever concocted. You have learned to write off people like me, who would turn Mecca and Medina and Qom and Karbala into charcoal. Why don't you focus your hate - and it really is Western self-loathing, in deference to Eastern savages - on the mortal enemy of our way of life?

Impartially, objectively and properly: you are a pathetic pollyanna, who is incapable of discerning pure evil. And you are in the way.

Sigh. This is a rather inaccurate and ahistorical view of Islam. As was noted here shortly after 9/11, many American mistake Wahhabism for Islam, when Wahhabism is in fact a rather out-of-the-mainstream variety. The Saudis would like to encourage that mistake, and Osama bin Laden hoped to provoke a major religious war (though I don't think he understood the likely outcome), but I'd prefer to see neither get their way.

UPDATE: Adding to my bemusement is this email from reader John Mendenhall:

Re your reader who accused you of being of an insufficiently discerning take on Islam and the threat Islam, as a polity, poses to Western life:

A very simple, if no particularly elegant, thought exercise will isslustrate what he means. If, say, renegade Lutherans were suddenly to take to the airways, blow up big buildings in Malaysia, behead Muslim hostages, sink (what--dhows owned by Muslim governments) with maximal casualties, blow up as many innoncent Muslims as they could get their hands on--

Would the Western response be to:

a: send them money
b: build them schools
c: march enthusiastically in the streets with each fresh atrocity
d: publish blood libels in the national press, or
e: stop them in their tracks right now right away first thing this afternoon whatever it took.

If you chose any answer but (e) the reader is right is assessing your dhimmitude. Though the reader didn't say so as well as others might have, the dhimmitude of Europe and its cousin the dhimmitude of American liberalism is the Chamberlainism of our time. Except there were not very many Nazis and there are billions of Muslims.

(I am married into a Minnesota family and am keenly aware that the words "renegade" and "Lutheran" don't work so well together these last five hundred years.)

But wouldn't what the reader above suggests be the equivalent of blowing up Pentecostals and Catholics for the actions of those Lutherans?

Hello, the people who read you can't tell the difference between one group and another.  That's why we should not be focusing on the Islamic aspect of the terrorists but the terrorist aspect.  Literally it does not really matter if they are Islamic or Bahai.  They are terrorists, the same as Timothy McVeigh.  And as long as you emphasize the fact they are Islamic, you will never beat them because they will call on their co-religionists to protect them.  That's why we're losing the war.

Rather.  He told a true story some people didn't want to hear.  So they found a big mistake he made.  But saying he made a mistake and saying the story isn't true isn't the same thing.

More importantly, Rather went out and got the story.  The Big Story.  While Jennings and Brokaw had the wonderful studio delivery, Rather made sure to be right where it was happening.  He was there when JFK was assasinated, when King marched, when the action was thick in Vietnam and Afghanistan--Dan Rather was there.

And he wasn't afraid of asking the tough questions. From LBJ to Nixon to Bush to Castro to Saddam, he never failed to ask the tough questions.  A few times his questions made him part of the story.  But mostly he was getting the story.  TV won't be the same.  Partisans may yell, but history won't forget.  TV journalism has lost something great, something it can never get back.  And we have lost a voice of history.

There are two questions out there regarding the status of political blogs and the McCain-Feingold Bipartisan Campaign Reform Act.  The first, and more important is, should political blogs be regulated by the FEC?  The second question is, Will they?

The answer to the first question is: almost always no.  The answer to the second question is: probably no.

McCain-Feingold was introduced and passed to get rid of a vexing problem--how to stop a political group, aligned with a candidate, but not reporting directly to him, from pouring money into a race to buy TV ads supporting (or more importantly, slamming) a candidate.  Such a tactic could get around the campaign finance laws and result in an undue influence of money on elections--usually out-of-district money.

But the key difference between blogs and the spending on TV ads that McCain-Feingold was designed to stop has to play a role in any future regulatory analysis here. The problem with TV is its prohibitive cost and the relatively few outlets involved make real the possibility that one person could buy up all the TV time in order to influence the election.  When only one message gets out, the purpose of free speech is thwarted as much as if stormtroopers tore down the signs of opposing candidates. 

Blogs are different.  Because of the interactive nature of the Internet, no one is usually sent to a site they do not want to go, or forced to view content they do not want to see.  They must actively go to a page to reach it.  And once there, they can leave secure in knowing that there are millions of other pages where they can find content they want.

Not so with TV, at least locally.  Local TV advertising is dominated by two groups, local broadcasters and your local cable or satellite company.  This leaves generally at best four or five outlets for purchasing TV advertising.  A person watching TV has options, but when the local companies have all sold time to one candidate, they have locked up the market.  Not everyone sees the message of both sides.

Indeed it can be argued that blogs are the very thing needed to break the cycle that McCain-Feingold hoped to stop.  They are the solution, not the problem.

That's why it makes sense to make sure that blogs are not regulated as a TV ad would be--they do not limit the number of viewpoints a person can have access to, the expand them.

There are things that should be regulated on-line--actual advertising.  Sidebar advertisements should not be able to be given away for free to a candidate and not his or her opponent.  They must be paid for with hard cash, the same way any other ad might be paid for.  This is the only area where blogs and TV should be regulated the same.

An entirely different question is Will blogs be regulated? The answer is a resounding no in almost every case.  Except in cases where a blogger is getting paid with hard money to literally pimp a candidate, there is no basis for regulation.  In that situation, it is not a question of coordination, it is a campaign worker or contractor getting paid hard dollars by the campaign.

But when an individual expresses his support for a candidate in a blog, he is not contributing monetarily to it.   In Buckley v. Valeo, the Supreme Court found campaign contribution restrictions constitutional because  "a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication."  The Court saw the contribution as a symbolic act of free speech, and expressly held that the amount contributed "does not communicate the underlying basis for the support."  The Court held that "[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing."

In contrast, a blogger who continually supported the candidate of his or her choice would be communicating the underlying basis for the support, unless they only ran links to candidates, without any content at all.

The noises out of the FEC seem to indicate that no large scale regulation of blogs is in the offing.  Indeed, the only thing that seems to be happening is a concerted effort to undermine McCain-Feingold by Republican members of the commission.  Democratic members are steadfast in their refusal to go after blogs, while Republican members continually misstate the meaning of the Shays decision.

A quick comparison of statements by the commissioners on the matter makes this clear.  Ellen L. Weintraub, a Democratic Commissioner was clear on what she thought would happen:

"People should not be alarmed," said Ellen L. Weintraub, a Democratic commissioner. "Given the impact of the Internet," Ms. Weintraub said, "I think we have to take a look at whether there are aspects of that that ought to be subject to the regulations. But again, I don't want this issue to get overblown. Because I really don't think, at the end of the day, this commission is going to do anything that affects what somebody sitting at home, on their home computer, does."

But Republicans utterly overstate the ruling of Judge Kollar-Kotelly in Shays.  Michael Toner slyly overstates the judge's ruling in the case: "We have a ruling ordering us to go back and define a rule."   Not so, Mr. Toner.  Judge Kollar-Kotelly merely indicated that "What constitutes "general public political advertising in the world of the Internet is a matter for the Commission to decide."  (.pdf, see pp. 56-57).

Yet Bradley Smith continues to argue that the opinion went further than that:

In an interview, Mr. Smith said he did not believe that the judge's ruling limited the F.E.C. to regulating only paid advertising on the Internet.

"In theory, there's no reason why everything that goes on a blog advocating a candidate wouldn't be an independent expenditure and subject to regulation,"

Yet there is no language in the opinion to support these assertions--the judge merely ruled that the words "general public political advertising" applied to the Internet the same as all other media.

But more importantly, Smith and Toner simply don't have the votes.  The FEC is a six-member board, split between the parties.  Four people must vote for any new restrictive regulations applying to blogs.  No evidence exists that such regulation is going to get a single Democratic vote on the committee, let alone the votes of long-time anti-regulation advocates such as Smith.

So why do the Republicans on the FEC seem to be trying to push the story that their hands are being forced?  Simple.  They are opposed to FEC regulation of campaign spending at all and are anxious to whip up a storm in Congress to beat back McCain-Feingold.  Now that some seats have changed hands in the Republican's favor, they may feel like they have the votes to do so.

So, before all of the bloggers out there get all worked up about this issue and start moving to defeat McCain-Feingold, one has to ask about the motives of those who allege their hands are tied.  The stories they are telling are not true.  So why believe them in the first place.

This is not to say that there should be no vigilance on any proposed rulemaking, but that a healthy dose of skepticism is in order before the unsupported claims of Bradley Smith & Co. should be believed.

Update 3/7/05, 5:16 PM: It appears that Professor Richard Hasen of Election Law Blog agrees with me:

Appropriate regulation should meet two fundamental criteria: (1) grassroots activities should be regulated little, if at all; and (2) large-scale campaign activity—like advertising—that already faces regulation when done outside of the Internet should be regulated equally when the activity takes place through the Internet.

It is this impending rulemaking that spurred Commissioner Smith’s comments. He likely wanted to whip up the Internet community into an anti-regulatory frenzy, much like what happened in the non-profit activist community when it appeared last Spring that the FEC—in considering regulation of those "527" groups that became active in presidential politics—would regulate the campaign financing of some "501(c)" non-profits as well.

Commissioner Smith suggests that a blogger’s placement of a hyperlink to a candidate’s home page might be considered coordination with that candidate, and that the action could therefore trigger coordination rules and valuation rules that could get the blogger in legal trouble for making an excessive in-kind contribution.

The FEC likely won’t go down this route, nor should it. It should create a safe harbor for activities like linking to a candidate web page, much like current law creates an exception to the in-kind contribution rule for donating the value of one’s time for a campaign as a volunteer. There’s not much corruptive potential in creating such a hyperlink, and the government has no good reason to discourage what looks like beneficial, grassroots political activity.

Recent polls are showing something rare in the American political environment--despite the efforts of the President to use the bully pulpit of the Presidency to push through a major domestic change, the polls show that his effort is resulting in a reduction of support for his proposed change in Social Security.

Figuring out why this is happening is difficult.  Conventional wisdom has it that a re-elected President, for a brief time stands at the height of his power, as the power of incumbency peaks.  Yet Bush has failed to capitalize on his status as a re-elected President.

However, a good portion of why this has happened involves the disconnect between the President's behavior and his carefully-constructed image.  Indeed it is the widening disconnect between the two which is leading to high levels of distrust in the President and the increasing free-fall in the poll numbers.

Since September 11, 2001, the President's team has carefully cultivated his image as a resolute executive, who stakes out bold positions, holds them and leads others to support them.  But the President's actions on Social Security demonstrate a personality who wants things done but does not want to take responsibility for getting them done.

Take Bush's plan on the issue.  There is none:

Fixing Social Security permanently will require an open, candid review of the options. Some have suggested limiting benefits for wealthy retirees. Former Congressman Tim Penny has raised the possibility of indexing benefits to prices rather than wages. During the 1990s, my predecessor, President Clinton, spoke of increasing the retirement age. Former Senator John Breaux suggested discouraging early collection of Social Security benefits. The late Senator Daniel Patrick Moynihan recommended changing the way benefits are calculated. All these ideas are on the table.

From the beginning of this process, Bush has made it clear that he was not going to advance a plan of his own, but try and get anyone and everyone else to carry the load.  This is a far cry from a decisive leader who stakes out a position and then forces others to come to it.

This position has put Bush in some rather comical rhetorical situations where the President famously decried attempts to get him "to negotiate with myself in public."  Indeed, Bush saw expectations that he would lead on this issue as a positive conspiracy:  "It is all part of trying to get me to set the parameters apart from the Congress."

As Bush attempts to change the single largest and most popular government program, the public is becoming more and more accustomed to seeing the reality of this President and the way he makes decisions (or fails to make them).  They don't like what they see:  A USA Today poll showed support for the President down 8 percent to 35 percent in a mere three weeks.  Other polls were even less favorable: CBS News showed only 31 percent of Americans were confident in George W. Bush's ability to make the right decisions about Social Security.

These numbers are critical to the President and the success of his second term.  Trust, once lost, is gone forever.  An image, once destroyed, cannot be restored to where it once was.  The President has to start getting out front on this issue with his own program and be seen as taking his own risks if he is to save his own skin.  The smart money says he won't.