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BOTH SIDES NOW: Scandals-Without-Headines I: Constitution-Gate!

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Show trials and screw-ups do not make for true "scandals." But what about GOP efforts to in effect deny the original intent of Article II when it comes Obama's constitutional power to name judges? Spitzer & Matalin debate this as well as the NSA, Rice-Power appointments and Alter's #1 best-seller on 2012.

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It's a month of law what with Bolger, Manning and Zimmerman going on trial and an activist Supreme Court primed to issue 5-4 rulings on meta-issues like Affirmative Action and Voting Rights (again?). But between these coming developments and recent 'scandals,' Spitzer and Matalin focus on a "Scandal Without Headlines" -- since Article II is in the revered Constitution but the Filibuster for judicial picks is not -- as well as Rice-Power, the NSA and an "after-report" on Obama-Romney. There's some surprising consensus.

On the Rice-Power Nominations. The two agree that these were nominations of two capable, experienced people who reflected Obama's priorities about humanitarian intervention, just as Bush43's choice of John Bolton to the UN reflected his very different values about the UN. Mary cheekily lauds Obama "for showing who he really is rather than who he isn't, which is a centrist." While it's hard to ignore the contretemps around Rice's Benghazi "talking points," neither considers that now material after the White House email dump revealed that they were thought up by and drafted by Gen. Petraeus and the CIA, not Rice.

Mary notes that while Rice will be more an assertive advocate than her predecessor Tom Donilan, "but she may be disappointed since [the slot usually goes to one who is] a synthesizer and buffer who implements the president's orders." Eliot concludes that the new team may indicate a new assertiveness for President Obama's foreign policy team, especially on such big, pending decisions as whether to intervene in the Syrian civil war.

Host: As for these appointments revealing any shift in administration policy abroad, let's remember that Obama, even with a strong Secretary of State like Hillary Clinton, has largely been his own secretary of state when he overruled advisors on establishing a deadline for troops in Afghanistan, sending in seals rather than bombers to take out bin Laden, and jumping into Syria early and hard.

The stunning photo of Obama exiting his announcement press conference arm-in-arm with two brilliant, tough, professional women will be iconic and self-explanatory. After picking Hillary and now Rice & Power, it's doubtful we'll hear much more about Obama not appointing enough ranking women or doing so merely to be "defiant" (Rove) or "malicious" (Tantaros). Talking about patronizing and a gender gap!

On Filibustering Obama's Judicial Nominations. Frustrated by months and years of delays on his judicial nominations and the threat of filibusters on new ones, President Obama did throw down the gauntlet by naming three ABA-approved people to vacancies to the D.C. Circuit Court of Appeals. Is this "Constitution-Gate" since Article II obviously intends that Obama has the power to nominate jurists or does it constitute "court-packing" of a bench that doesn't have a busy docket?

Eliot pounces: "This is clearly abuse of the advise-and-consent power. It's ridiculous to call this 'court-packing' which refers to FDR's attempt to add additional seats to the Supreme Court rather than filling those that exist. It's like saying that when my kids take their seats at Thanksgiving I'm packing the dinner table!" Mary doesn't agree with Senators McConnell and Lee on the "packing" meme but pushes the argument made by Senator Grassley that the workload on this docket doesn't need three more judges. "We need more judges in other districts but not the District."

Adids Eliot: "Chief Justice Roberts [who is the head administrator of federal courts] disagrees with you" since he wants all seats filled given national caseloads.

Fact: Of the federal judges named by Reagan, it took about 10 days from nomination choice to Senate confirmation; W, 30 days; Obama, 130 days. Time for Reid to get a majority Senate vote to bar judicial filibusters? Yes says Eliot, especially if he dared do it when the next Supreme Court openings occur. Mary doesn't disagree but blames Democrats for attacks on and delays of the Bork and Thomas nominations.

Neither Bork nor Thomas were filibustered and got up-or-down votes in the Senate -- Bork failed 58-42 in an up-or-down majority vote and Thomas was confirmed 52-48.

So is slow-walking all of Obama's nominations a worse scandal than, say, the IRS issue?

On Alter's "After-Report" on 2012.

Reporter and historian Jonathan Alter -- a critical admirer of Obama's -- this week published The Center Holds about why he won by five million votes and 332 to 206 in the electoral college. In the spirit not of relitigating but objectively weighing the various factors that produced this result, we go through several variables discussed by Alter on a scale of 1-10, with 10 being very significant:

*Obama won the core economic argument of middle-class versus Richie Rich, especially once the 47 percent video came out. Eliot ranks this a 7 as best captured at the two conventions which contrasted a "we built that" with an "I built that" view of community, government and economics. While Mary agrees with a 7 rating, she adds that Obama sounded better than his policies and Romney, though a brilliant and "great man," failed to make any effective counter-argument enabling Obama to play offense against no defense.

*Obama's campaign apparatus and analytics -- fours years in the making -- was superior to Romney's. Eliot ranks this a 10 and Mary agrees. "We were in the dark ages. It'll take us forever to catch up." Consensus... but was this because Democrats are more open-minded and scientific and so better attracted the geeks of Silicon Valley and Alley? No one bit.

*Did it matter that Obama win the "have-a-beer test" because he was more personable and hip? Though not disagreeing with the premise, the two agreed that, in a year of such clashing views and values, this Jay Leno-test (especially since the Mormon couldn't drink a beer!) was of little consequence.

*Were social trends like young people on gay marriage and the rising numbers of Latinos a big deal? Eliot regards this a 10 and the biggest reason for Obama's victory... and is still astonished that Romney didn't pivot after the primary season to be more welcoming to immigration rather than his "severely conservative" language about "self-deportation." Mary doesn't disagree about the political impact but explains that "the Romney campaign had the faulty strategy "of just depending on the failure of your opponent [on the economy]" and so they didn't adequately deal with these issues. "Our campaign sucked!"

*Others: Obama killed bin Laden. Eliot rates this an 8 because it mooted the standard argument by Republicans that Democrats were soft on defense -- while Mary thinks this not influential since the public "gave credit rightly to the military." Hurricane Sandy? Mary gives this a 10 because it obliterated all other issues for a while - Eliot agrees it was important because it showed the contrast "between a party which believes we need an effective government bringing Americans together and how Bush performed during Hurricane Katrina." The "Clown Car" of 22 GOP debates with fringe candidates and comments tainting Romney? The two for different reasons rate this a 7.

It was fun trying to quantify reasons Obama won but this device may have confused trees for forests. Money, debates, particular issues and sound bites aside, it could all have come down to two dominant factors: a) there are more registered Democrats than registered Republicans ad b) Obama better understood and reflected the diversity and economy of a 21st century America - i.e., Obama is a modern man while Romney seemed to embody nostalgia.

On the NSA meta-data collection. The story is breaking as we tape the program. Again, both fret the potential civil liberties abuse of government having such data as phone calls and emails. Should the Patriot Act be re-authorized to limit government here? Mary thinks not while Eliot leans yes, citing associates in the NSA who have told him that government indeed does listen in to calls though President Obama denied that later in the day.

On the Supreme Court and DNA Testing. Was it ok for the Supreme Court -- with Breyer in the majority with the conservatives and Scalia in the minority writing for the liberals -- to allow police taking to a swab to get DNA of those accused of serious crimes? What about the Fourth Amendment requirement of probable cause to use as evidence in past crimes?

Mary worries about big government data banks but ends up with the majority while Eliot agrees "so long as the data is not kept if the person is found innocent."

Mark Green is the creator and host of Both Sides Now.

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