Pathetic Right Wing Commentary Runner Up

Here is the second most pathetic criticism of Kerry that I read in
yesterday's right wing blogs. You may remember that Charles Johnson, the right leaning
leader of that right leaning West Coast Cult, Little Green Footballs,
was trying to get a "jacketgate" scandal started, based on Kerry
taking something out of his jacket and putting it on the podium before
last week's debate. This would-be scandal fell flat on its face, as
the object turned out to be a pen. Kerry's campaign pled guilty to
the candidate using a pen to take notes, and the rest of the world
moved on.

But not Johnson. Johnson, who relentlessly flogged Dan Rather for not
apologizing fast enough for the Killian documents, has proudly
announced that he will not apologize for anything. Why? Because
Johnson, blaming the mainstream media (LGF blames the "MSM" for
everything), insists that the questions were legitimate. UHF, yeh,
legitimate questions about what Kerry took out of his pocket before
the debate, but not legitimate questions about Bush's military
service.

Never mind all that. Johnson gets downright weird when he goes on to
lament the total moral depravity of the Kerry campaign:

"It's a bit depressing that this country is now willing to accept
blatant flouting of debate rules, because it was only a pen. Kerry
was specifically forbidden to do this, by rules to which he agreed
after much negotiation; but he did it anyway, apparently without even
thinking."

I guess I could say it's a lot more depressing that this country is
now willing to accept Bush's blatant flouting of his national guard
commitment, because Dan Rather ran a story using unverified
documents. But that's a different story.

Let's examine Johnson's statement that Kerry blatantly flouted rules
that specifically forbid him to take a pen out of his pocket and put
it on the podium.

I have found two rules that seem to be applicable.


Rule 5(c) states that "No props, notes, charts, diagrams, or other
writings or other tangible things may be brought into the debate by
any candidate."

Rule 5(d) states that "Notwithstanding subparagraph 5(c), the
candidates may take notes during the debate on the size, color, and
type of paper each prefers and using the type of pen or pencil that
each prefers. Each candidate must submit to the staff of the
Commission prior to the debate all such paper and any pens or pencils
with which a candidate may wish to take notes during the debate, and
the staff of the Commission will place such paper, pens, and pencils
on the podium, table or other structure to be used by the candidate in
that debate."


So, Kerry was entitled to use the pen. That's the only thing that
mattered. How the pen gets to the podium is a triviality. There is a
maxim in the law "de minimis lex non curat." The law does not care
about small insignificant matters. The law recognizes that it is
impossible to draw up rules that cover every possible eventuality, and
it is impossible to follow every little insignificant rule that can be
written. We look to the substance of the rules. In this case, the
substance was that Kerry was entitled to use a pen of his choice. As
long as the pen was not objectionable (and it was not), then the
details about getting the pen to the podium would be considered "de
minimis."


Of course, we don't even know whether Kerry's pen was submitted to the
commission or not. Since we don't know that, we can't say that Kerry
violated the rule, even de minimis, much less "flagrantly" violated
it. For all we know, the commission approved Kerry's pen.

Johnson shows that he is totally out of touch with the world. The
reason that the country is willing to ignore Kerry's use of "just a
pen" is because it is just a pen. People understand what's important
and what's not. The country understands that a 32 page set of rules
for a debate is as ridiculous as the 26 paragraphs of "terms and
conditions" that free web sites make you agree to. All laws and all
rules are not created equally. Everybody is constantly triaging rules
and regulations all day long. There are those we have to follow,
those that nobody follows, and a few that we're not really certain
about. The country, unlike Johnson, instinctively understands how
silly that rule about putting the pens on the podium is. It's
kindergarten stuff.

The irony is that Johnson, like most of the wingnuts, crucifies Kerry
over the "global test" issue. They want a president who runs
roughshod over rules of the United Nations and is willing to invade countries
in violation of international law. Apparently, however, this same
president has to let somebody else tell him what pen he can use to take notes.