Jeffery Rosen's complicated idea about why the Supreme Court really should uphold Obamacare.

Generally, I'm tired of these MSM articles that seem to be trying to push the Court to uphold the Affordable Care Act — as if the Justices are reading these articles and vulnerable to efforts — by writers who obviously politically support the law — to scare them into thinking people will lose respect for the Court. I say "seem to be" because I think these articles are really about shaping public opinion. They're not telling the Justices that people will disrespect them. They are stoking the people's disrespect in advance of an opinion that strikes down the law (in case that's what happens), and they are laying the groundwork for arguments about why Obama should be reelected (and Democrats need to keep control of the Senate).

But I'm going to link to this new Jeffrey Rosen piece in The New Republic. Why? It's just so amusingly complicated. I'll paraphrase the points he makes, in order:



1. A new poll (which we talked about on the blog here) shows declining approval for the Supreme Court and a belief that the Justices are sometimes influenced by their personal/political beliefs.

2. Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

3. There's a new study (by Nathaniel Persily and Stephen Ansolabehere) that says people decide whether they approve of the Court based on whether they like the outcomes of the cases, which suggests that an effective way for the Court to get respect would be simply to provide the outcomes people want.

4. A survey shows that people do like the outcomes of most of the big Roberts Court cases, and that's out of line with the declining approval of the Court, but it might be that people are giving extra weight to some of the big cases, the ones they don't like — maybe Kelo (for Republicans) and Bush v. Gore (for Democrats).

5. Maybe people support or reject the Court based on whether they are conservative/liberal and whether they believe that the Court is what they are — conservative/liberal.

6. A lot of people don't know which Justices were appointed by Republican Presidents and which were appointed by Democratic Presidents. (Rosen assumes the conservative/liberal split among Justices tracks whether they were appointed by Democrats/Republicans, which happens to be true of the current Court, though it was untrue before the Obama appointments were made.) But a study found that in the set of people who know that Republican Presidents have appointed a majority of the Justices, Republicans tend to support the Court, and Democrats are less supportive.

7. Even though a large majority of Americans say they want to see the health care law stricken down, and despite the Persily/Ansolabehere finding that people like the Court when they like the outcome, it's a mistake to think that the Court's approval rating will climb if it strikes down the law by a 5-4 vote. This is because, over time, 5-4 decisions remind people that the Court has a partisan split, and while this will make Republicans like the Court more, Democrats will like it less. Rosen doesn't specify this point, but it needs to be understood here: Only 24% of Americans surveyed by the NYT/CBS want the Court to uphold the law, so it would seem that many, perhaps even a majority of Democrats will approve of the outcome. But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way. 

8. Rosen concedes that even if everything in point #7 is right, the Court might move up in the approval rankings because of the increased approval coming from Republicans who like the Court for being so partisan and conservative.

9. John Roberts should eschew that method of moving up in the approval ratings, because he'd be a better leader if he avoided the appearance of partisanship.

ADDED: Here's my analysis:

1. Rosen had material that added up to the conclusion that the Court would improve its stature among Americans if it struck down the health care law.

2. Rosen doesn't want the Court to strike down the health care law.

3. Rosen wrote some complicated paragraphs and then declared that he'd shown why the Court shouldn't strike down the health care law.

NYT/CBS poll shows low approval rating of the Supreme Court... but why?

A poll of 976 adults shows 44% approve of "the way the Supreme Court is handling its job," 36% disapprove, and 20% judiciously opine that they don't know. When asked if "the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?," 76% give the answer that is obviously prompted by the question: They sometimes let their own personal or political views influence their decisions.

You really have to be naive or to restate the question in your head before answering to resist the "sometimes" and say legal analysis only, but 13% did. 7% had the wits to quibble with or qualify the question and say that some of the Justices do or "it depends." The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in the question and jumped on the obvious "yes").

Here's the analysis in the NYT by Adam Liptak and Allison Kopicki, who stress that the approval level is as low as it's been in a quarter century. But why is approval on the decline? Is it because of the new Obama appointees and what's going on with the liberal wing of the Court? Or is it John Roberts and the coterie of conservatives that the NYT would like to push back? The poll questions do not attempt to extract this particularity.

They don't ask, for example: 1. Do you think that the Supreme Court should strike down statutes that exceed the Framers idea of limited, enumerated powers?, 2. Do you think that the Court should define constitutional rights to accord with evolving notions of equality and individual autonomy?, 3. Can you name a Supreme Court Justice who is accurately applying legal analysis without regard to his or her own personal or political views?, 4. Can you name a Supreme Court Justice who has allowed his or her personal or political views to influence decisionmaking?

Different answers to questions like that could take us in quite different directions. But Liptak and Kopecki seem to assume that the conservatives are the problem:

The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions....

But:

On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law when it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.

The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases. That combination of attitudes is perfectly sensible. In addition, it's natural for human beings to perceive that the judges who aren't doing it right are the ones who are reaching the outcomes that they don't like. That's how the mind works. It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it. I expect comments that will demonstrate exactly the thing that I just said was natural for human beings to perceive.

Do you care about Congress's limited, enumerated powers and the idea of judicially enforceable federalism?

Or do you think that's all a lot of conservative bull that we shouldn't have to pay attention to? — I ask Bob Wright, who asserts a belief in "legal realism," which I ask him to define... and help him to define:



Click "continue" to hear me defend Bush v. Gore.

Bush v. Gore is "the case of the century" because it "truly altered history," even though it "didn’t change constitutional doctrine."

Writes TNR's Jonathan Cohn setting up a discussion of whether this year's big Obamacare decision will be the new case of the century. Well, the century is pretty young, and admittedly Bush v. Gore felt like a huge deal at the time. But "truly altered history"?

Just think how the years after 2001 would have unfolded if Al Gore had been president.

Ridiculous! I can't believe Cohn doesn't know that if the case had gone the other way Gore would still have lost in the end!

George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes — more than triple his official 537-vote margin — if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election.

That's the news from 2001. And speaking of 2001, does Cohn actually think that Gore would not have responded vigorously to the 9/11 attacks? 

Anyway, I have close to zero interest in reading what Cohn has to say about this year's big case.

I generally leave the sophisticated constitutional analysis to Jeff Rosen, my (much) more informed colleague. But you don't have to be a legal expert to....

Fortunately, I can do my own legal analysis. I'm certainly not interested in Cohn's. As for Rosen's... I don't need to read that either. I know what he'll say. 

"Maybe there are good legal arguments why Kagan need not recuse herself..."

"... but there is no good reason that she shouldn't at least come forward and publicly explain her decision."

Not doing so suggests that there is something deeply political (and maybe, like Bush vs. Gore, even something partisan) going on, and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

Gov. Walker sues to require the Government Accountability Board to check for fake/duplicate/illegible signatures on recall petitions.

The Journal Sentinel reports:

The GAB has said it's up to challengers to point out problems like those and the board itself cannot automatically toss the signatures for those reasons.

The lawsuit says allowing multiple signatures is a violation of the equal protection clause of the U.S. Constitution because it harms the rights of those not signing. ...

[A]ccountability board spokesman Reid Magney said the board was simply following the law and a carrying out a process that would ultimately weed out bad signatures after Walker's campaign called for striking them.

Meanwhile, signature-gatherers claim they've got 500,000 signatures (of the 540,208 needed to force an election). But who knows how many are fakes or duplicates? And if there is a recall election, the Democrats must put up an actual candidate to defeat Walker.

It seems likely that there will be enough signatures submitted. Then, we have to go through the process of challenging bad signatures. If there's a wide margin between what is submitted and what is required, the challenge process won't be such a big deal... unless the proportion of bad signatures appears high in relation to the margin.

Next, we'll have to muck our way through the primaries, with Walker able to play a role attacking these candidates, weakening them before he even faces them. Under state law he can raise and spend as much money as he wants, and he's already spent $2.2 million on advertising. Finally, a candidate will emerge from the battering in the primary and face Walker. Walker, I imagine, will have much more money to spend and he'll be running as an incumbent. Won't he win? By a lot?

And if Walker wins, where will the Democrats be? The Walker administration and the Republican legislature will have a new mandate to pass legislation that they might not have dared to attempt if Walker had only been left alone. If somehow Walker is defeated, the new Democratic Governor will have a Republican legislature to stymie him, so things shouldn't be much different than if Walker had been left alone. I don't see why it's worth it to the Democrats to go for the recall. What is the point... except to emit an inarticulate cry of pain?

And yet people sign the petitions. It makes no sense to me.

ADDED: Rick Hasen at Election Law Blog says that Walker's equal protection argument is "a major... stretch":

Though the complaint does not cite any caselaw supporting the equal protection theory, I suspect that if this goes further the Republicans will rely on Bush v. Gore.  

If this goes further... suggests that the point of the lawsuit is mainly to cause the GAB to decide to take on the work of checking the signatures.

Looking at the complaint, I see the idea is that the GAB is failing to take even minimal steps to deal with the problem of some people signing petitions more than once and this dilutes the influence of those who do not sign. Every qualified elector in Wisconsin is entitled to one opportunity to choose to sign or not to sign. Everyone who doesn't sign is, essentially, counted once (as signature-gatherers try to reach a number equivalent to a certain proportion of the total voters). Only those who sign have a way to get counted more than once, and when that misbehavior is not stopped, signing weighs more heavily than not signing.

Therefore — the argument goes — the GAB, by failing to exercise its role in a way that catches the multiple signatures, violates equal protection because it is diluting the political clout of one group as opposed to another.

The GAB is putting the burden on Walker to challenge the signature, but its rules give Walker "only 10 days to examine, compare and then challenge more than 540,000 signatures – more than 50,000 signatures a day," which the complaint calls "a practical impossibility."

Warren Christopher has died.

He was 85. I most remember him from his role in Florida recount in the 2000 election:

Mr. Christopher came under criticism at the time, and later in “Recount,” the 2008 HBO dramatization of the Florida vote dispute, over a lack of legal and political aggressiveness against Mr. Bush’s legal team, led by a former secretary of state, James A. Baker. The movie, in particular, portrayed Mr. Christopher as overly concerned with the niceties of the law while Mr. Baker was waging a bare-knuckled campaign on all fronts.

Mr. Klain said that was an unfair characterization. “Like all dramatic portrayals, they sought dramatic tension by exaggerating people’s personalities,” he said on Saturday. “People often confused Chris’s reserved style and personal sense of propriety with a lack of fierceness on behalf of his client. That would be a mistake.”

He said it was Mr. Christopher’s decision to challenge the Florida result, even as most Republicans and some prominent Democrats were urging Mr. Gore to concede. “People don’t remember how controversial that effort was. Without Chris’s stature and credibility, I’m not sure we would have gotten as far as we did,” Mr. Klain said.

I remember Christopher solemnly intoning: "We need to count all the votes." It was a mantra. And the other side had its mantra. James Baker would say: "The votes have been counted. They've been counted and recounted." Chez Althouse, we were for Gore, so Baker's "votes  have been counted" line drew hoots of derision. Analyzing the litigation calmly, afterward, I accepted the soundness of Baker's point. These were ballots designed to be read by machines, the ballots had gone through the machines twice, and there was no showing that the machines had malfunctioned. Switching to human readers introduced much more ambiguity and risk of deviousness than accepting the verdict of the machines. The machines, as they processed each card, didn't have political preference and awareness of which side was being helped.

The criticism of Christopher— that he was too nice and too proper — fails to take into account that he was arguing on the side that would strike many people as scarily chaotic and power-grasping. Baker was arguing for the security of the result delivered by machine.  Baker's attitude of belligerence was used to argue for ending the struggle. Transpose the Baker attitude onto the Christopher side of the argument — struggle, chaos, litigation, and the unknown. Would it have worked better than Christopher's mild demeanor?

It was 10 years ago today. Bush v. Gore.

The much-maligned Supreme Court decision came down, crushing the dreams of those of us whose hearts raced at the legal arguments that took the sound-bite form "count all the votes" and rankled at the other side's sound bite: "the votes have been counted... they've been counted and recounted."

Oh! How I wish I'd been blogging then. There were such interesting details every step of the way. Legal angles that could have been explained and examined. The reporting on the TV news was so biased and stupid. Things would have played out a lot differently if there had been legal bloggers picking through the fast-accumulating wreckage hour by hour. Instead we got those TV sound bites.

Have you noticed that you don't hear about "sound bites" — "5-second sound bites" — anymore? There's "viral video" now. Viral video and internet memes... and bloggers to call bullshit on mainstream media.

Ah, but what fun it would have been to have been calling the bullshit in the late autumn of the year 2000.

Talking Points Memo turns 10.

"The post was about Ted Olson making his debut as the chief Bush lawyer in the emerging Florida Recount battle."

Yes, it's also the 10-year anniversary of the big Florida recount. I wish I'd been blogging then! It would have been so much fun to write about that every step of the way. I'd have liked to show you in real time that I really wanted my guy, Al Gore, to win, and I also accepted nearly everything the Supreme Court did in the complicated litigation over the recount. But there are so many missed blogging opportunities in the past. I'd have loved to have blogged the Clinton scandals too. And the Clarence Thomas hearings. The Bork hearings.

Here's that first TPM post:

As if things couldn't get any weirder, did you notice the name of the lawyer who made the Republicans' unsuccessful arguments before that federal judge today? That would be Ted Olson, a man Washingtonians often refer to as a 'Washington super-lawyer.' Who is Ted Olson? Well, that would be the same one knee-deep in the Arkansas Project, which in league with the American Spectator spent a ton of money digging dirt on Bill Clinton in Arkansas....

Well, now, isn't that weird? I just blogged this morning about that Think Progress blogger who confronted Justice Alito and he was going on about the Arkansas Project:

Last night, the American Spectator — a right-wing magazine known for its role in the “Arkansas Project,” a well-funded effort to invent stories with the goal of eventually impeaching President Clinton — held its annual gala fundraising event....

That first TPM post wove Justice Scalia into its conspiracy-ish riff:

Of course, Olson... is also the Olson from Morrison v. Olson, the supreme court case which upheld the constitutinality of the Independent Counsel statute. Olson was against it. Come to think of it, we Dems now think he and Scalia were right. So maybe chalk one up in his favor.

So that's how TPM first talked about law. Yikes. Spelled "constitutionality" wrong too.

I'm going to start reading the lefty blogs more and writing about them, I think. I'm interested in the way they string ideas together, and I think they need some more push back.

Do you want me to write more about lefty blogs?
	No. Don't give them traffic.
	No. I don't care what they say.
	Yes. They need monitoring and criticism.
	Yes. Broaden your view and see what happens.
	Eh. Not sure. Depends on how sharp and funny you make it.
pollcode.com free polls

How misspelled can a write-in vote for Murkowski be before it shouldn't be counted at all?

Joe Miller is arguing for 100% correct spelling.

Lt. Gov. Craig Campbell, who oversees Alaska elections, has indicated that he will accept minor misspellings of Murkowski's name as long as the "voter intent" is clear.

Intent of the voter. Ah! That brings back delightful memories of the Bush v. Gore recount.

Miller is overdoing it. Clearly, they've got to count stuff like "Murakowski" and "Murkowsky" and "Murcowski" and even "Mercowsky." But where's the line? What about "Merssky"? Or "Murk."? What about "Lisa"? That's dimpled chad territory, no?

ADDED: A poll:

How strictly would you judge the write-ins?
	Miller's right. The spelling must be perfect.
	It must be phonetically accurate or only 1 or 2 letters off.
	If you can tell it was meant as a vote for Murkowski, it should count.
pollcode.com free polls

After the break, a second poll:

Now, be honest:
	My preference for Miller influenced my choice on the first poll.
	My preference for Murkowski influenced my choice on the first poll.
	I gave a neutral, principled response to the first poll.
	Honestly, I can't vouch for how my mind worked.
pollcode.com free polls

Ted Olson...

... "softened"? By his new wife? I find it hard to believe. But if he gets a new haircut and new glasses, then I might believe.

"We all remember Bush v. Gore."

Coleman's quest.

Did you watch "Recount," that HBO movie about the 2000 Florida recount?

I thought it was quite good. Though the story was mainly told from the Gore side, the Bush point of view was represented fairly, and there was a good overall balance to it. Complicated legal issues were explained surprising well without belaboring through through the use of various actors playing characters shown working out their next moves and real TV reporters seen in old video clips, telling us the news as it happened 8 years ago. It was especially exciting to see those old news clips, because, perfectly edited in, they stirred up the emotion that I felt when I saw them the first time. And the acted-out material really worked on me — as I was yelling at Al Gore not to concede and laughing at you don’t have to be snippy about it.

Kevin Spacey was the main character, Ron Klain. You either like Spacey or you don't. He seems to use dullness as his technique, and at this point, for me, it seems hammy. But his fleshy face was kind of subtly fascinating on the HDTV screen and I enjoyed him well enough.

We loved Laura Dern as Katherine Harris. It's so easy to mock the vain and exaggerated Harris, but Dern did a good job of getting inside the character. I could laugh and feel some reasonable sympathy for her.

The best actor was Tom Wilkinson, who, playing James Baker, mainly had to state legal positions and strategies. One thing I really love to get from an actor is the feeling that this person is thinking of the words he is saying — I want to lose the sense that there was a script — and Wilkinson really hit that spot for me with lines that must have looked dull on paper. After all, Baker was mainly about standing his ground, while the other side was scrappily fighting for every vote. But Wilkinson made this stolid intransigence damned exciting.

Of course, I got a kick out of seeing actors play the Supreme Court Justices. The Stevens and O'Connor were particularly good. The Ruth Bader Ginsburg didn't speak — maybe she wasn't even an actress — but she looked the part — amusingly.

That's my opinion. Take into account that: 1. I voted for Gore and rooted for Gore throughout the recount, 2. I accepted the Supreme Court's determination from the beginning (and continue to accept it after writing about it in depth and teaching it in detail numerous times), and 3. I didn't want Bush to become President, but I never hated him, and I voted for him in 2004.

IN THE COMMENTS: Somefeller writes:

I saw the film at a premiere last week at the Baker Institute at Rice. It was a lot of fun, and watching James Baker and Kevin Spacey elbowing each other every now and then when a good line in the film came on certainly added to the atmosphere. At one point, the sound went out on the film in a point when Spacey's character was having a big scene, to the horror of the Baker Institute staff, but it turned out great because Kevin Spacey jumped up and said his lines live, to the enjoyment of the audience, who basically got a free one minute live performance from Spacey. I spoke with Laura Dern at the reception after the film and asked her about her portrayal of Harris. She said the lines that Harris spoke in the film came from Harris's own book and from interviews with other GOP people involved in the Florida recount, so they weren't just created by the writers. She also said she tried to portray Harris (who she thought was basically someone in over her head and in many ways used cynically by other Republicans) sympathetically and not just as a cartoon character or villain, and she hoped that came through to the audience.

Are you in the mood to watch an HBO movie about the 2000 Florida recount?

Or are you troubled that the movie may be unfair to Democrats?

Warren Christopher, the former secretary of state who served as the public face of the Gore team in the early days of the recount effort, said this week that he believed the film, “Recount,” was “pure fiction” in its portrayal of him as a weak strategist unprepared to stand up to the aggressive tactics of James A. Baker III, the former secretary of state who was the chief Republican adviser.

Oh, look at the bright side, Warren. Democrats are just too darned kind-hearted to be evenly matched to those bastard Republicans.

Even Mr. Baker questioned the portrayal of Mr. Christopher. “I don’t think I was as ruthless as the movie portrays me, and I know he was not as wimpish as it makes him appear,” Mr. Baker said.

*adds "masculinity" tag*

“I think a lot of the strategizing in the script that I saw was somebody’s hindsight rather than what we had to deal with in the immediate aftermath of the election,” [said William M. Daley, Gore’s campaign chairman]. He added: “The perception that Warren Christopher was some wuss who got hoodwinked by Jim Baker is absolute fantasy in the mind of somebody who is trying to make themselves out to be bigger than they were.”...

“I was stunned by the [screenplay] excerpt,” [Warren Christopher] said in an interview. “Much of what the author has written about me is pure fiction. It contained events that never occurred, words I never spoke and decisions attributed to me that I never made.”

Oh, enough already. Deal with it. You don't hear James Baker bellyaching that they portrayed him as a big meanie, do you? Don't be such a .... wuss.

Hey, I'm really psyched about this movie. Here, watch the trailer.

"It was Al Gore who made it a judicial question…. We didn’t go looking for trouble. It was he who said, 'I want this to be decided by the courts.'"

"What are we supposed to say — 'Not important enough?'



It's nice to get a snappy video clip of Scalia saying this. I think he's right. I've thought that from the day the case came out. And I voted for Al Gore and had been watching the Florida antics with the punchcards and the chads and hoping he'd luck into a win. I've also written about the case at length and taught the case many times in law school.

ADDED: Here's the main scholarly article I wrote about the Gore-Bush litigation.

All this talk about Al Gore as a compromise candidate...

It's crazy, isn't it?

Meanwhile, Obama is saying Hillary can stay in the race "as long as she wants." Now, I'm sure he really only means that he's not the right person to tell her to quit. He should maintain his magnanimity. Let surrogates pressure her. But, whatever. He's right.

It's just a tight race and we need to "count every vote." That was the battle cry for Democrats the last time Al Gore came near the presidency. Anyone who thinks that playing out the process to the bitter end is too chaotic and divisive is sounding the anti-Gore theme from the year 2000.

What the Brit learned reading 2 books about the U.S. Supreme Court.

He's lawyer turned columnist, Marcel Berlin:

... I had just finished reading a recent book on the Supreme Court judges: The Nine, by Jeffrey Toobin. What struck me first was how impossible it would be to have such a book here. In the US the nine judges of the highest court are national news: here their equivalent, the 12 law lords, are virtually unknown outside the legal world....

Toobin looks behind the scenes of the court's decision - by a majority of 5-4 - to hand the US presidency to Bush in 2000, following the Florida voting fiasco. His account does not enhance the court's reputation. Reading it made me feel even more strongly than I had before that the case was decided by the majority on primarily political, not legal grounds.

Clarence Thomas, generally regarded as the weakest of the judges, recently published his autobiography, My Grandfather's Son, describing his upbringing as a black child in a poor family in the racist south. It should be an inspiring story. He spoils it by his bitterness, anger, egotism, and the burden of many chips on his shoulders.

Thanks for the pithy summary of your bias.

"I'd be more than happy to loan Sen. Obama the winning briefs that helped secure the election of the legitimate winner of the 2000 election."

Says Ted Olson, contemplating the prospect of a lawsuit, brought by Hillary Clinton in Florida state court, over the Democratic Party's refusal to recognize Florida's convention delegates. What if it makes the difference in the nomination and the Florida courts decide in favor of Mrs. Clinton? Would the Supreme Court step in?

Why does Naomi Wolf regret working for Al Gore?

Was it because her advice that he wear "earth tones" and establish that he is an "Alpha Male" brought him and her ridicule that continues to this day? No! It's that she took money to work for the Gore campaign. And it's a "big mistake for any writer" to take money from a candidate:

[B]ecause you can't then say whatever you want to say whenever you want to say it. That was the great luxury of being a freelance writer and beholden to nobody--which I had been, up until then.

Writers have to be free to criticize anybody and criticize the powers that be and to always be transparent with their readers. So since I was formally signed up with the campaign rather than volunteering as I had in '96

The problem with "earth tones" and "Alpha Male" wasn't that her advice was silly or embarrassing, it's that "the evil Republican National Committee... completely invented " it, and she "wasn't in a position, contractually, to hit back."

So it was very frustrating, when I'm used to being able to speak up, to not have a voice when the Bush Team was doing such a brilliant job of what we have subsequently learned is their specialty: creating imaginative lies and saturating the media with them.

This is from a Huffington Post series called "My Favorite Mistake," which I think is supposed to be about your own mistake (and how much you learned from it). Obviously, there is an immense temptation to identify something good you tried to do and to use the occasion to condemn your nemesis. Wolf succumbed.

My mistake was being so naive about how profoundly evil my enemy is.