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It has become fashionable lately to apportion blame equally for the increasing incivility in our body politic, even when that blame is not equally merited. The Nov. 12 editorial "Blah, Blah, Blah" runs afoul of such misguided "evenhandedness." The editorial claims in part that "Democrats fail to distinguish between qualified, reasonable [judicial] nominees from [President] Bush and objectionable ones."

The record on Bush's judicial nominees belies this: One hundred sixty-eight nominees have been confirmed, whereas four have been blocked by Democrats. How many such nominees could the Democrats justifiably oppose in your opinion? Two? One? Zero?

Personally, I'd like to see the two sides work this out. A solution that makes sense to me is a new Senate rule that would actually require a supermajority -- a two-thirds vote -- to pass any judicial nominee. Why? It would become not just difficult, but nearly impossible to force through nominees without wide consensus in the Senate. The two parties would either only be able to pass moderate judges or, at best, horse-trade liberal and conservative nominees in pairs. This would be a more-than-fair deal for the GOP. Republican nominees already have majorities on 10 out of the 13 circuit courts. The 168 judges already put in place by Bush will serve for life. Eventually, the new system would introduce ideological parity and balance, but in the short term, it would preserve the conservative status quo on the federal bench. And all these senators could finally get some sleep.

The whole controversy illustrates a process with which we have become very familiar over the past two decades. First, the Right either develops new "theories" or resurrects old ones that most progressives find laughable when they first encounter them. The Right persists and uses the resources of its think tanks, press connections, a growing presence in academia and now conservative bloggers to "mainstream" these ideas by force of repetition.

Before too long, these theories that first struck most as extremist or oddball crowd out the previously dominant progressive views and become the new settled wisdom. This has happened in the area of tax policy where the idea of progressive income and estate taxation is barely alive while ideas like "supply side economics" and the flat tax are in the ascendancy. A similar evolution is taking place in foreign policy spurred by PNAC and in the areas of labor and environmental law as well. A supporter of Lochner and the related Hammer case would have been laughed out of a law school class 20 years ago since the "theories" of constitutional law that underlie it would invalidate wage/hour laws, the Wagner Act and the Civil Rights Act. Now a Bush judicial nominee hails Lochner as a bulwark against "kleptocracy" and Bernstein, Volokh and Reynolds defend her.

The value of blogs has been demonstrated once again by this discussion. It is not as easy as it once was to preach only to the converted. Bernstein gets read by Nathan Newman, Jeanne at Body and Soul, Kieran Healy and the rest of us, and the opportunity is presented to expose and critique these ideas before they become settled wisdom. While the scholarly community uses journals and conferences to accomplish this same process of the testing of ideas, blogging offers an openness of access, speed and "frankness" not typical of those venues. It gives progressives a place where we can learn about these ideas, analyze them and confront them. It's a tool that can help to stop what almost seems to be an inexorable slide into some bizarre combination of plutocracy and theocracy.

What's the real issue here? It's not Sec. 215 -- that provision hasn't been used at all. The real issue here is trust. Simply put, large blocks of American society (I have no idea whether it's a minority or majority) do not trust the federal government with their civil liberties. This lack of trust enables them to believe the worst about their Justice Department. I happen to think that the Justice Department does mostly good things, and that its career attorneys and agents are some of America's finest public servants. But I often find myself in the minority when I discuss this issue with friends and students. The reality is that many of my colleagues do not trust the Justice Department, or the Bush Administration. And without such trust, these Americans are willing to see nearly anything as an assault on their civil liberties -- almost regardless of factual basis.

David Vladeck, an associate professor at Georgetown University Law School, said the withholding of the report raises questions about Justice’s commitment to FOIA.

“They didn’t release it because it didn’t make them look good,” he said. “This is an example of how this administration has abused the FOIA principle.”

“It’s a classic example of what Congress was seeking to avoid when it enacted FOIA, which was to prevent agencies from withholding embarrassing information,” said David Sobel, general counsel of the Electronic Privacy Information Center. “And now that we’ve had the rare opportunity to see what was being withheld, it’s obvious that was the motivation here.”