Separation of powers

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Hitchens makes another unsupported accusation against Hillary Clinton on Hardball -- this time, that she "got" her husband to visit Pakistan "in return for" campaign funds

During the December 1 edition of MSNBC's Hardball, commentator and author Christopher Hitchens -- a frequent critic of the Clintons -- again claimed that in 2000, Hillary Clinton "got" her husband "to change his plan to visit India and to build in a visit to Pakistan on the way in return for" thousands of dollars she received from a fundraiser held by a Pakistani-American PAC. Hitchens cited no source for his assertion, and reporting at the time said there was "no evidence" to support such a claim. Hitchens made similar claims on the March 29, 2000, edition of the show, as well as in the 2000 edition of his book No One Left to Lie To: The Values of the Worst Family and in a May 1, 2000, column in The Nation. Hitchens made these accusations despite offering no support and despite reporting undermining his claim. During the December 1 edition of Hardball, after making the accusation, Hitchens added: "Everyone in Pakistan knows she's open for business. This is not a left-right question. It's a matter of integrity." In response, Salon.com senior editor-in-chief Joan Walsh said to Hitchens: "I believe you cherry-picked the worst possible interpretation, as well as facts that aren't necessarily facts, and come up with this analysis." In a May 1, 2000, column in The Nation titled "The Two Faces of Hillary" (available by subscription), which he quoted at length in the 2000 edition of No One Left to Lie To, Hitchens provided no evidence for the accusation that Hillary Clinton "got" Bill Clinton to go to Pakistan. Hitchens wrote: General [Pervez] Musharraf's regime has now hired, at a retainer of $22,500 per month, the DC law firm of Patton Boggs, for which Lanny Davis, one of the First Family's chief apologists, toils. Perhaps for reasons having to do with the separation of powers, Patton Boggs also collects $10,000 monthly from Pak-Pac, the Pakistani lobby in America, for Davis's services in its behalf. Suddenly no more Dem jokes about ignorance of Pakistan. Last December, after Clinton announced that Pakistan would not be on his itinerary when he visited the subcontinent, his former White House "special counsel" arranged a fundraiser in Washington at which lawyers from Patton Boggs made contributions to the First Lady's Senate campaign that now total $25,500. So, not very indirectly, Pakistani military money was washed into her coffers from the very start. Then, in February, another Pak-Pac event, in New York, was brought forward so as to occur before the arrangements for the President's passage to India had been finalized. Having been told that the First Lady did not grace any event for less than $50,000 upfront, the Pakistanis came up with the dough and were handsomely rewarded for their trouble by the presence of Lanny Davis and by a statement from Mrs. Clinton that she hoped her spouse would stop off in Pakistan after all. And a few days later, he announced that, after much cogitation, he would favor General Musharraf with a drop-by. How does this look to you? One way of deciding it is to try the cover stories for size. "I wish I could say I had the influence and had applied the right pressure for the President to visit Pakistan, but I didn't, so I can't." That's Lanny Davis. Is this what he tells the Pakistanis in return for his large stipend? "If anybody thinks they can influence the President by making a contribution to me, they are dead wrong." That's Hillary Clinton. Is that what she said at the Pak-Pac fundraiser? One thing that strikes the eye immediately is how cheap this is. And inexpensive, too. The Pakistani nuclear junta must be rubbing its eyes: For such a relatively small outlay of effort it can get the First Family to perform public political somersaults. [emphasis in original] During his March 29, 2000, appearance on Hardball, Hitchens accused Bill Clinton of "selling U.S. policy on Pakistan to help his wife" and claimed it was a "scandal." Host Chris Matthews responded by asserting that Hillary "grabbed a ton of money from Pakistani-Americans, a huge ethnic group with lots of money and she grabbed all their money and then she said she was not going to encourage her husband to go to Pakistan but all of a sudden he went to Pakistan." Hitchens responded: "No, she said at the dinner I hope he goes to Pakistan." Contrary to Hitchens' overt accusation on December 1 that Hillary Clinton "got" Bill Clinton to go to Pakistan and his suggested accusations to that effect earlier, The New York Times reported in a March 14, 2000, article that "no evidence has emerged that Hillary Rodham Clinton, who told people at the dinner that she hoped her husband would visit Pakistan, had influenced his decision last week to do so." The Times went on to quote White House spokesperson Mike Hammer as saying, "The first lady's views were not part of the decision-making process." Additionally, the Times noted that "Mr. Clinton has previously indicated his own desire to go to Pakistan." Additionally, contradicting Hitchens' claim that Davis "organized" the February 2000 New York fundraiser, the Times reported that Davis said "he played no role in arranging the fund-raiser." As Media Matters for America has documented, in the context of reports that Obama intended to nominate Clinton, Hitchens repeatedly attacked Clinton's foreign policy credentials during appearances on MSNBC: On the November 18 edition of 1600 Pennsylvania Avenue, Hitchens suggested that Clinton was not "respected in the Pentagon," despite ample evidence that Clinton "has gained a lot of respect among military leadership" and has "built relationships" with military leaders such as Gen. David H. Petraeus and Adm. William J. Fallon. During the November 17 edition of Hardball, as well as the November 18 edition of 1600 Pennsylvania Avenue, Hitchens revived his accusation, which he has yet to source, that Hillary Clinton blocked any action by the Clinton administration in war-torn Bosnia in 1993 because she didn't want it to interfere with passage of her health-care plan. From the December 1 edition of MSNBC's Hardball with Chris Matthews: MATTHEWS: OK, Joan, let me try to ask you to climb through that rubble. That's very complicated. What do you think -- HITCHENS: Rubble? MATTHEWS: -- of this appointment? It's complicated, Christopher, because you make the point that this administration's policy hasn't been to the right of what Barack Obama is promising for his administration, which most people would disagree with your view and accept mine -- that it is to the left of what we've had for eight years now. HITCHENS: Listen, is it left or right for Hillary Clinton to get her husband, after a huge Pakistani fundraiser -- I'm speaking about something very important to us right now. A few years ago, a huge Pakistani fundraiser, in New York, organized for her by Lanny Davis, she got Clinton to change his plan to visit India and to build in a visit to Pakistan on the way in return for a huge campaign donation. Everyone in Pakistan knows she's open for business. This is not a left-right question. It's a matter of integrity. WALSH: I think this is ridiculous. I think -- HITCHENS: Do we want such a person as secretary of state? WALSH: Christopher, your views on the Clintons -- MATTHEWS: Joan, your turn. WALSH: Christopher, your views on the Clintons' integrity are well-known. I consider them eccentric. I believe that you cherry-picked -- HITCHENS: Getting -- WALSH: I'm not -- I'm not going to say that they are perfect, but I believe you cherry-picked the worst possible interpretation, as well as facts that aren't necessarily facts, and come up with this analysis. HITCHENS: Name one. Name one. WALSH: I think this is a terrific -- HITCHENS: Name one. WALSH: I think this is a terrific -- I'm stepping -- I'm going to step around the rubble today, Christopher. HITCHENS: One, one. From the March 29, 2000, edition of Hardball (retrieved from the Nexis news database): MATTHEWS: Well, tell me about India and Pakistan and what your thoughts are. HITCHENS: What about selling U.S. policy on Pakistan to help his wife? It's a scandal. I can't believe [Rudy] Giuliani is being so quiet about it. If he saw -- MATTHEWS: So she went on television -- I know she grabbed a ton of money from Pakistani-Americans, a huge ethnic group with lots of money and she grabbed all their money and then she said she was not going to encourage her husband to go to Pakistan but all of a sudden he went to Pakistan. HITCHENS: No, she said at the dinner I hope he goes to Pakistan. MATTHEWS: I hope he goes. But the fact is that it was never an issue. HITCHENS: Of course, she's lied a lot about it, as she lies about everything. But you notice that Lanny Davis, her former hack and flack, has been hired by the Pakistani military dictatorship. We were all laughing at Bush for being too nice about that general and forgetting his name, remember? MATTHEWS: Right. HITCHENS: Now, Lanny Davis, the hack and flack for the Clintons, is hired for 22 grand a month to represent this dictatorship in Washington and New York. We find he arranged another big dinner in D.C. for fundraising and for pressure on the Clintons. It's extraordinary. MATTHEWS: You mean that guy that was on this show all the time defending Clinton -- HITCHENS: The whole compromise with dictatorship and with a nuclear power to try and help his wretched wife and her wretched campaign in New York. MATTHEWS: Well, let me ask you -- HITCHENS: Where is the outrage, Christopher? MATTHEWS: Well, it seems to be present in San Francisco where you are tonight. Let me ask you about this Lanny Davis role. I'm fascinated. Twenty-two thousand dollars a month to represent the dictatorship that overthrew the democratic government in Pakistan and he isn't part of the fundraising campaign, apparently. What's the connection between Hillary -- the fundraising in New York to get her elected to the Senate and the efforts by the Pakistani government to pay for goodwill here in Washington through the good offices of Lanny Davis? HITCHENS: Yeah, well Mr. Davis says, when he's asked about the dinner he put on in Washington, well, I don't have this kind of influence to change Mr. President Clinton's itinerary. Well, I wonder if that's what he tells the Pakistanis when they hand him the check. Don't give this to me under the impression I can do anything, guys. MATTHEWS: Let me ask you about -- HITCHENS: It's enough to make a cat laugh, isn't it? But I mean it wouldn't be the first time they'd sold off a bit of foreign policy for some domestic moolah.

Wash. Times failed to note Chambliss' filibuster flip-flop

In a November 30 Washington Times article on the December 2 Georgia Senate run-off, reporter S.A. Miller uncritically reported Sen. Saxby Chambliss' (R) suggestion that he would support filibustering judicial nominees if they are, in Chambliss' words, "liberal activist[s]." Miller did not note that Chambliss previously said that the filibuster of judicial nominations, resulting in a denial of an up-or-down vote, is unconstitutional, or that he supported the "nuclear option" to change Senate rules to eliminate the filibuster as a procedural option for a minority of senators to block judicial nominations. Miller quoted Chambliss saying: "[W]e have the opportunity to make sure that we are that firewall, that 41st vote to make sure that we don't have our taxes raised, to make sure that we have the right kind of judges going to the bench, not liberal activist judges." Senate rules require a supermajority of 60 votes to invoke cloture, or end debate, on most matters -- including judicial nominations. Thus, 41 votes against cloture would defeat it. However, Miller did not note that in a Senate floor statement on April 13, 2005, Chambliss asserted that "never before in the history of the Senate has a minority of 41 Senators held up confirmation of a judicial nominee where a majority of Senators has expressed their support for that nominee." He added: "It is for this reason, if given the opportunity, I will vote in favor of changing our rules to allow confirmation of a judicial nominee by a simple majority because under the Constitution of the United States, the Senate is required to give its advice and consent to the President on his judicial nominees." Chambliss continued: The Senate can say no in regard to any particular nominee, but to do so we need an up-or-down vote to decide what advice we give the President. Failing to answer the question is shirking our constitutional role in the separation of powers scheme. The Constitution spells out in certain areas, such as passage of constitutional amendments and ratification of treaties, where more than a simple majority of Senators is required. Confirmation of judges is not one of these areas. Moreover, Chambliss and Sen. Johnny Isakson (R-GA) wrote in a May 24, 2005, op-ed in The Atlanta Journal-Constitution that "the Constitution require[s] an up-or-down vote" and expressed support for restoring what they said was "a 214-year Senate tradition whereby judicial nominees are confirmed by a simple majority." Additionally, Miller reported in the article that "Republican Party and conservative groups such as Freedom's Watch" have criticized Democrat Jim Martin for being "soft on crime," without noting that the Martin campaign responded to a National Republican Senatorial Committee (NRSC) ad attacking Martin's votes on crime bills with an ad of its own, in which Martin notes that his daughter was kidnapped when she was 8 years old and states, "That's why I fought so hard to crack down on violent crime and lock up violent criminals." Moreover, Miller did not note that while the NRSC ad claimed Martin was "one of three to vote against making it a felony to solicit a child for prostitution," according to a November 25 FactCheck.org article, the Martin campaign asserted that he did not support a version of the bill that included "language that would have allowed willing teenagers to be prosecuted as felons for engaging in oral sex." The FactCheck.org article also reported that Martin did support a bill identical to the one that the ad cites except that it made clear that those prosecutions would occur only in instances in which money was being offered. From Chambliss' April 13, 2005, Senate floor statement: I will start by noting again that never before in the history of the Senate has a minority of 41 Senators held up confirmation of a judicial nominee where a majority of Senators has expressed their support for that nominee. It is for this reason, if given the opportunity, I will vote in favor of changing our rules to allow confirmation of a judicial nominee by a simple majority because under the Constitution of the United States, the Senate is required to give its advice and consent to the President on his judicial nominees. The Senate can say no in regard to any particular nominee, but to do so we need an up-or-down vote to decide what advice we give the President. Failing to answer the question is shirking our constitutional role in the separation of powers scheme. The Constitution spells out in certain areas, such as passage of constitutional amendments and ratification of treaties, where more than a simple majority of Senators is required. Confirmation of judges is not one of these areas. The Senate rules have changed on several occasions over the years as to whether and in what circumstances a filibuster is allowed, but we have, unfortunately, come to a point in time where the filibuster is being abused to hold up judicial nominees on which we are required to act; that is, to say yes or no. I believe it is in violation of the Constitution. I want to take a point in fact relative to the circuit in which I practiced for a number of years, and that is what is happening today with regard to the judicial nominee to the Eleventh Circuit Court of Appeals. The Democrats have held up confirmation of the only nominee President Bush has made to the Eleventh Circuit Court which handles Federal appeals in my home State of Georgia as well as Alabama and Florida. From Chambliss and Isakson's op-ed: Article II of the Constitution clearly states that, as members of the U.S. Senate, it is our responsibility to give "advice and consent" to presidential judicial nominees. It is what this president and every president deserves. It is what the American people want. And most importantly, it is what the U.S. Constitution requires. Yet for the past two years, the Senate has failed to carry out this duty because the minority party has filibustered several of President Bush's judicial nominees. The minority has blocked the majority from having an up-or-down vote. Not only does the Constitution require an up-or-down vote, denial of an up-or-down vote goes against basic principles of fairness; it also is unprecedented in Senate history. We believe it is time to end this obstructionism and fulfill our constitutional duty. That's why we are supporting Majority Leader Bill Frist in his effort to restore a 214-year Senate tradition whereby judicial nominees are confirmed by a simple majority. The Constitution specifies those few times when the Senate must have a two-thirds vote, such as to ratify treaties or override a presidential veto. But when it comes to confirming the president's judicial nominees, the Constitution does not require a two-thirds vote for confirmation. The Constitution clearly states it is the Senate's responsibility to give advice and consent. We both wholeheartedly support discussion and debate regarding judicial nominees. It is important for each judicial nominee to have his or her qualifications examined, undergo thorough background checks and be asked tough questions. But it is also important that after a time of extensive debate, there must also be a time for a decision. From the FactCheck.org article: An NRSC ad claims Martin was "one of three to vote against making it a felony to solicit a child for prostitution." Actually, Martin eventually supported the child prostitution bill after it was rewritten. He objected to language that would have allowed willing teenagers to be prosecuted as felons for engaging in oral sex. Martin's campaign notes that he voted in favor of the bill 16 days later, after a slight wording change. Martin voted against House legislation on Feb. 1, 1988, and was one of only three representatives to do so. Martin's campaign tells FactCheck.org that the original bill contained a constitutional problem. It defined solicitation of sodomy (which can be either oral or anal sex under Georgia law) from a person under age 17 as a felony -- whether or not it is done for money. "That's why he voted against it," says Patrick Suter, Martin's research director. Suter said the bill as worded would have made it illegal for two willing teenagers to have sex. The Georgia Senate then offered a substitute bill, and when it came to the House for a vote on Feb. 17, 1988, Martin voted for it. We looked at the votes and language of both versions of the bill published in the Georgia House Journal. The Senate version stipulated that a solicitation of sodomy must be "for money" to be a felony. Other than those two words, the House and Senate versions were identical. The Senate version passed the House unanimously. From the November 30 Washington Times article: Ads by Mr. Chambliss, the Republican Party and conservative groups such as Freedom's Watch hit Mr. Martin for being too liberal for Georgia and a champion of the liberal agenda of Mr. Obama and the Democrat-led Congress. They say he is soft on crime, backs higher taxes, and takes liberal stands on social issues such as opposing parental consent for minors to get abortions. [...] On the stump, Mr. Chambliss is running as much against Mr. Obama and the Democrat-led Congress as he is against Mr. Martin. "We know the direction in which they are going to take us, [and] we have the opportunity to make sure that we are that firewall, that 41st vote to make sure that we don't have our taxes raised, to make sure that we have the right kind of judges going to the bench, not liberal activist judges," Mr. Chambliss said at a rally at the Right Wing Tavern in Woodstock, Ga. "Jim Martin will provide that blank check to do all of those things, ... but you can make the difference," he told the more than 200 people who filled the bar, a focal point of politics in the Republican stronghold of Cherokee County, which is north of Atlanta and key to Mr. Chambliss' runoff strategy. Mr. Chambliss was joined at the rally by former Republican presidential candidate and former New York Mayor Rudolph W. Giuliani, one in a parade of political celebrities stumping in Georgia that included Mr. McCain.

Scarborough falsely claimed Obama said the Warren Court was "not, quote, 'radical enough' "

During the October 28 edition of MSNBC's Morning Joe, host Joe Scarborough falsely claimed that during a 2001 radio interview, Sen. Barack Obama said that "the Warren Court was not, quote, 'radical enough.' " In fact, during the interview on Chicago public radio station WBEZ, Obama did not say the Supreme Court under Chief Justice Earl Warren was not "radical enough." Additionally, echoing the Drudge Report's October 27 false headline: "2001 Obama: Tragedy that 'Redistribution of Wealth' not Pursued by Supreme Court," Scarborough said of Obama's comments: "Who would think that when a guy talks about one of the -- that the Warren Court, the Warren Court did not go far enough, that actually one of the great tragedies was there was no redistribution of wealth." Further, co-host Willie Geist falsely asserted that during the 2001 interview, "Obama says one of the great failures of the civil rights movement is that it didn't lead to a redistribution of wealth by the Supreme Court." In fact, contrary to Scarborough's and Geist's assertions, the "traged[y]" Obama identified during the interview was that the civil rights movement relied too much on the courts in its efforts to bring about political and economic justice. Obama stated: "And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change." Later in the segment, NBC chief foreign affairs correspondent Andrea Mitchell noted that Obama "wasn't really speaking about income redistribution. He was speaking simply, descriptively about what the court did and what the court did not do, and what is appropriately the role of the court." She went on to say Obama was taking "a strict constructionist view ... of the role of the court. ... He was not arguing against against social action -- hardly that -- but he was saying the courts were not in that business and shouldn't be in that business." From the January 18, 2001, broadcast of the WBEZ's Odyssey program, "The Court and Civil Rights": OBAMA: Right, and it essentially has never happened. I mean, I think that, you know, if you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples so that I would now have the right to vote, I would now be able to sit at the lunch counter and order in, as long as I could pay for it, I'd be OK. But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and Warren Court interpreted it in the same way that, generally, the Constitution is a charter of negative liberties -- says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf, and that hasn't shifted. And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And, in some ways, we still suffer from that. [...] GRETCHEN HELFRICH (host): Let's talk with Karen. Good morning, Karen, you're on Chicago Public Radio. CALLER: Hi. The gentleman made the point that the Warren Court wasn't terribly radical. My question is with economic changes. My question: Is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to take place? HELFRICH: You mean the court? CALLER: The courts, or would it be legislation, at this point? OBAMA: You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way. You know, you just said -- look at very rare examples wherein, during the desegregation era, the court was willing to, for example, order, you know, changes that cost money to a local school district. And the court was very uncomfortable with it. It was hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time. You know, the court's just not very good at it, and politically, it's just -- it's very hard to legitimize opinions from the court in that regard. So, I mean, I think that, although, you can craft theoretical justifications for it legally -- you know, I think you can, any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it. SUSAN BANDES (DePaul University law professor): I don't necessarily disagree with that, but I think it also depends on -- much of the time what we see the court doing is ratifying the status quo, and, in fact, the court makes redistributive decisions or distributive decisions all the time -- OBAMA: Right. BANDES: -- and it -- OBAMA: But, but, but -- BANDES: Let me give you an example, which is that the court considers whether it's OK to take a program, a federal Medicare program that provides -- you know, that recompenses people by insurance for every medical procedure they can have except abortion. And it upholds that -- OBAMA: Right. BANDES: -- and says we can except abortion from that. Well, that's a decision about what kinds of subsidies we're willing to uphold and what we're not. OBAMA: Although, typically, I mean, the court can certainly be more or less generous in interpreting actions and initiatives that are taken by the legislature, but in the example of, for example, funding of abortions or Medicare and Medicaid, the court's not initiating those funding streams. I mean, essentially what the court is saying is, at some point, OK, this is a legitimate prohibition or this is not. And I think those are very important battles. From the October 28 edition of MSNBC's Morning Joe: GEIST: John McCain's got a new ad out talking about taxes, he's also out talking about Barack Obama the redistributor, talking about this 2001 audio clip where Barack Obama says one of the great failures of the civil rights movement is that it didn't lead to a redistribution of wealth by the Supreme Court. So, here he is, John McCain talking about Barack Obama the redistributor. McCAIN [video clip]: He said that, quote, one of the "tragedies" of the civil rights movement is that it didn't bring about a redistribution of wealth in our society. That's what change means for the Obama administration -- the redistributor. It means taking your money and giving it to someone else. He believes -- he believes in redistributing wealth, not in policies that grow our economy and create jobs. GEIST: Now, this issue just fell into his lap because of something Obama said. Why haven't they been seizing on this earlier? Why didn't they find it themselves? SCARBOROUGH: You know, they really should have seized on it this earlier -- they should have seized on the second -- Obama talked about spreading the wealth. They should have been a lot more aggressive. You've got -- you've got, what is your theme? And you go with that one theme and you hammer it home, especially when you have all of this -- the clutter out there, and they haven't done that. JOHN HARWOOD (CNBC chief Washington correspondent): It may be, though, guys, that because they knew about this ahead of time, but at an earlier point in the campaign, when they weren't as needy as they are now, they thought it was ridiculous because it is ridiculous. SCARBOROUGH: What's ridiculous? HARWOOD: This whole redistributive change stuff. SCARBOROUGH: That's ridiculous to you? HARWOOD: John McCain favors redistribution, OK? He favors a progressive tax system. He favors refundable health care tax credits to people who don't pay taxes, which is what he's attacking Barack Obama for. His solution for Social Security is to take money that's scheduled to go in benefits for rich people and give it to people who make less money. SCARBOROUGH: OK, so you're talking about John McCain, and I -- HARWOOD: I'm talking about John McCain -- SCARBOROUGH: I agree on these things -- HARWOOD: -- what I'm saying is the exact charge that he's making against Barack Obama, that he favors policies that take more from people at the top and give to people on the bottom, he also favors. SCARBOROUGH: OK, but I mean, if you want to go down that path you can say that John McCain also was one of the only two Republicans that voted against this tax -- the tax Bush tax cuts -- HARWOOD: Yes. SCARBOROUGH: -- which he's now championing, and of course I agree with -- HARWOOD: Yes, which is part of the incoherence problem that you mentioned earlier because he was against it and now he's for it. SCARBOROUGH: But if this is the tack they've decided to take, they should have weighed in, and I agree with you completely that there's a double standard. But I will tell you I am personally concerned by any politician that talks about the redistribution of wealth, that the Warren Court was not, quote, "radical enough." I'm concerned when somebody tells a guy that wants to start a small business that he should be for spreading the wealth. I mean, these are things that cause concerns not just to conservative -- HARWOOD: It's a matter of degree, OK? SCARBOROUGH: -- fiscal conservatives like me but people in the middle. This sort of worldview collapsed when Ronald Reagan got elected, but I think we all agree here -- and two great points. You say it's not in his gut. You talk about how there are inconsistencies here. McCain, in the end, is just not the man to fight back against this message, is he? Not the Republican -- we don't -- I know you don't want to editorialize, but there would be better fiscal conservatives to carry this message forward, right? [...] MIKA BRZEZINSKI (co-host): Here with us now, NBC News chief foreign correspondent and host -- SCARBOROUGH: We don't gotta get to Andrea. We love Andrea. BRZEZINSKI: I want to get to Andrea. That's my point. SCARBOROUGH: This is -- this is -- that's why we wake up in the morning, we've got Andrea. BRZEZINSKI: Yeah, and that's why we need to get to her. MITCHELL: Thanks for that. BRZEZINSKI: She is the host of MSNBC at 1 o'clock Eastern time -- Andrea, it's a great show, you gotta watch it. Andrea Mitchell joins us. Andrea, good morning. MITCHELL: Hi. SCARBOROUGH: Andrea, we're talking -- MITCHELL: Glad to hear you all arguing the major economic, you know, debates of the 20th century. The only problem is this is the 21st century. This all seems like so old. SCARBOROUGH: It is the 21st century, but I'll guarantee you if people's tax rates are increased by four percentage points on income tax, this will suddenly become a 21st century issue. MITCHELL: Yeah, but not the way it's being framed, not by -- as Mark Halperin was just saying and John, by pulling up a little snippet of a seven-year-old interview, a symposium on Constitution and the law from NPR in Chicago, where it's not even clear what Barack Obama was discussing unless you have a law degree from Harvard University. That's all. SCARBOROUGH: Well, I mean he talks about redistributing wealth and that the Warren Court was not radical enough -- MITCHELL: Not really. SCARBOROUGH: -- because it didn't, there wasn't the redis -- what do you mean not really? MITCHELL: If it -- well, it's not clear that that's what the words -- it's not clear that that is not taking it out of context, Joe. In fairness to everybody involved, I tried to read deeper into this yesterday, more deeply into this, and was persuaded by people a lot smarter than I about the law that he wasn't really speaking about income redistribution. He was speaking simply, descriptively about what the court did and what the court did not do, and what is appropriately the role of the court. There are some people arguing that he was taking a conservative position about the -- this was not the business of the court, that the court didn't do this. SCARBOROUGH: Which people would that be? MITCHELL: This was the business of community organizers. SCARBOROUGH: David Axelrod and -- MITCHELL: No, no, no. SCARBOROUGH: Who would think that when a guy talks about one of the -- that the Warren Court, the Warren Court did not go far enough, that actually one of the great tragedies was there was no redistribution of wealth. MITCHELL: I will send you the full -- SCARBOROUGH: I mean, I did go to law school, and there is nothing conservative about what he said. HARWOOD: But actually, Joe, he said that the court can't do that -- SCARBOROUGH: But actually, I'm not a good lawyer, exactly, good point. HARWOOD: No, actually, he said -- he said the court's not equipped to do that. SCARBOROUGH: Not now. HARWOOD: Yeah. MITCHELL: Exactly. HARWOOD: It didn't sound like he was advocating that the court to do it. What he was saying the civil rights movement needed to recognize that if that's the kind of change they want, they weren't gonna get it from the court. SCARBOROUGH: And now he's saying -- and again, he's said it didn't go far enough. Now he's saying it needs to be done by legislators or needs to be done administratively. Now, is that correct, Andrea? MITCHELL: I don't know what he is saying today about the subject. I know what he said seven years ago, which is that it was not the business of the courts to get into this. He was taking if you, would you believe, a strict constructionist view -- SCARBOROUGH: No, I wouldn't believe that. MITCHELL: -- of the role of the court. OK. He was not arguing against against social action -- hardly that -- but he was saying that the courts were not in that business and shouldn't be in that business.

In column ABC's The Note called a "Must Read," Wash. Times' Pruden joins conservative chorus in misrepresenting comments Obama made in 2001

In his October 28 Washington Times column, Times editor emeritus Wesley Pruden joined Matt Drudge, Fox News, and Rush Limbaugh in misrepresenting remarks Sen. Barack Obama made in a 2001 interview on a Chicago public radio station, making several false statements. In spite of the falsehoods, ABCNews.com's The Note included Pruden's column among its "Must Reads" for the day. Pruden wrote: The tape recording of an interview that Barack Obama gave to Radio Station WBEZ in Chicago in 2001 surfaced, and in that interview Mr. Obama, then a law professor and a state senator, lays out how he would redistribute the wealth. [...] Mr. Obama doesn't think much of the Constitution, or even of the Supreme Court justices who have rewritten it over the years to accommodate notions of "social justice." The Warren Court, which wrote finis to public-school segregation with its unanimous Brown v. Board of Education decision in 1954, has been decried since as radical, but it wasn't radical enough. But Obama did not say that the Supreme Court under Chief Justice Earl Warren "wasn't radical enough" during the 2001 interview with public radio station WBEZ. Rather, he stated: "[T]he Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution." Obama went on to say that it is not the function of the courts to initiate broad social change. Pruden then purported to quote from portions of Obama's 2001 interview: One of the "tragedies of the civil-rights movement," Mr. Obama says, is that the Supreme Court did not address redistribution of wealth, probably because of the inherent difficulty of achieving such goals through the courts. The Supreme Court did not break from the restraints of the Constitution and "we still suffer from that." Pruden advances two distinct falsehoods here. First, Obama did not say that it is a "traged[y]" that "the Supreme Court did not address redistribution of wealth." Rather, as Media Matters for America has noted, the "traged[y]" Obama identified during the interview was that "the civil rights movements became so court-focused" in trying to bring about political and economic justice. Second, when Obama said "we still suffer from that," he was still referring to his belief that the civil rights movement "became so court focused," which he said resulted in "a tendency to lose track of the political and community organizing." Below are the portions of Obama's 2001 WBEZ interview that Pruden misrepresented: But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and Warren Court interpreted it in the same way that, generally, the Constitution is a charter of negative liberties -- says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf, and that hasn't shifted. And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And, in some ways, we still suffer from that. Later in the column, Pruden baselessly alleged that Obama "clearly thinks the constitution was a 'tragedy,' that the men who wrote it were not the revolutionary heroes plain Americans regard them to be, and their work must be corrected by the surviving radicals of the '60s and their progeny." Again, the "tragedy" Obama identified was not related to the Constitution or its framers, but rather that "the civil rights movements became so court-focused." From Pruden's October 28 column: Mr. Obama doesn't think much of the Constitution, or even of the Supreme Court justices who have rewritten it over the years to accommodate notions of "social justice." The Warren Court, which wrote finis to public-school segregation with its unanimous Brown v. Board of Education decision in 1954, has been decried since as radical, but it wasn't radical enough. Earl Warren only pretended to be a soldier of the revolution. One of the "tragedies of the civil-rights movement," Mr. Obama says, is that the Supreme Court did not address redistribution of wealth, probably because of the inherent difficulty of achieving such goals through the courts. The Supreme Court did not break from the restraints of the Constitution and "we still suffer from that." Mr. Obama is not "optimistic" that the Supreme Court can achieve redistribution of wealth - of taking from the workers to give to the deadbeats - but he obviously thinks he knows how to do it. A president with a compliant Congress, which he expects to be in January, can do it through legislation and "administration." [...] There's nothing ambiguous about Mr. Obama's radical views, as revealed in this interview. He clearly thinks the Constitution was a "tragedy," that the men who wrote it were not the revolutionary heroes plain Americans regard them to be, and their work must be corrected by the surviving radicals of the '60s and their progeny. Anyone who listens to this interview, available on YouTube.com, understands why Michelle Obama was never proud of her country until she thought the opportunity was at hand to destroy the country to save it, and why Barack Obama could spend 20 years comfortably listening to the Rev. Jeremiah Wright exhort God to damn America. From the January 18, 2001, broadcast of the WBEZ's Odyssey program, "The Court and Civil Rights": OBAMA: Right, and it essentially has never happened. I mean, I think that, you know, if you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples so that I would now have the right to vote, I would now be able to sit at the lunch counter and order in, as long as I could pay for it, I'd be OK. But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and Warren Court interpreted it in the same way that, generally, the Constitution is a charter of negative liberties -- says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf, and that hasn't shifted. And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And, in some ways, we still suffer from that. [...] GRETCHEN HELFRICH (host): Let's talk with Karen. Good morning, Karen, you're on Chicago Public Radio. CALLER: Hi. The gentleman made the point that the Warren Court wasn't terribly radical. My question is with economic changes. My question: Is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to take place? HELFRICH: You mean the court? CALLER: The courts, or would it be legislation, at this point? OBAMA: You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way. You know, you just said -- look at very rare examples wherein, during the desegregation era, the court was willing to, for example, order, you know, changes that cost money to a local school district. And the court was very uncomfortable with it. It was hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time. You know, the court's just not very good at it, and politically, it's just -- it's very hard to legitimize opinions from the court in that regard. So, I mean, I think that, although, you can craft theoretical justifications for it legally -- you know, I think you can, any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it. SUSAN BANDES (DePaul University law professor): I don't necessarily disagree with that, but I think it also depends on -- much of the time what we see the court doing is ratifying the status quo, and, in fact, the court makes redistributive decisions or distributive decisions all the time -- OBAMA: Right. BANDES: -- and it -- OBAMA: But, but, but -- BANDES: Let me give you an example, which is that the court considers whether it's OK to take a program, a federal Medicare program that provides -- you know, that recompenses people by insurance for every medical procedure they can have except abortion. And it upholds that -- OBAMA: Right. BANDES: -- and says we can except abortion from that. Well, that's a decision about what kinds of subsidies we're willing to uphold and what we're not. OBAMA: Although, typically, I mean, the court can certainly be more or less generous in interpreting actions and initiatives that are taken by the legislature, but in the example of, for example, funding of abortions or Medicare and Medicaid, the court's not initiating those funding streams. I mean, essentially what the court is saying is, at some point, OK, this is a legitimate prohibition or this is not. And I think those are very important battles that have to be fought, and they do have a distributive aspect to them.