Baseball Crank
Covering the Front and Back Pages of the Newspaper
July 20, 2005
LAW: Privileged Documents

Beldar makes two interesting but inherently conflicting points about John Roberts (via Krempasky at RedState). First, touching on a point I've made before, he predicts that the Democrats will use improper requests for documents as an excuse to delay the nomination (what I've referred to previously as the Coca-Cola strategy):

Judge Roberts has spent much of his career as a public servant - first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying.

Beldar's point is well-taken; you will recall that all the living Democratic Solicitors General signed a letter opposing the effort to obtain privileged internal documents from Estrada's time with the SG's office. The issue is an institutional one, not a partisan tack taken by the Bush Administration. But, having explained why those documents can't properly be released to the Senate, Beldar nonetheless argues that they have validly formed the basis of Bush's own impressions of the nominee:

Through documents and through first-hand opinions of solid and reliable conservatives who've worked closely with John G. Roberts - in his capacity as a private counselor, and not just a public advocate - Dubya does have full access to what Judge Roberts has thought and said when he's been at his most candid, under pressure and entirely outside the public spotlight.

Hugh Hewitt pointed out on his radio show tonight, entirely correctly, that when John Roberts was a lawyer for the Reagan Administration, that Administration was under legal siege: times were tough, stakes were high, and wise, private legal judgments were desperately needed. Seeing from a client's viewpoint how a lawyer functions as a counselor - how he privately answers key questions like "Is this wise? Is this principled? What are the downsides? What do we really think, public fa├žade aside?" - is extremely revealing. Quite arguably, this sort of information can tell one even more about how a nominee will perform in the future than what he's written - always for publication and usually after compromise with others on the bench - as a judge on a lower appellate court.

Thus, through people like former Solicitor General Ken Starr (and, perhaps, Chief Justice Rehnquist?) with whom John Roberts has worked very closely, and through privileged documents that Judge Roberts must have written himself while a government lawyer, Dubya and his staff certainly know vastly more about Judge Roberts' character and core beliefs than, for example, Poppy Bush ever could have known about David Souter or than the Gipper ever could have known about Sandra Day O'Connor and Anthony Kennedy. Instead, Dubya and his staff have the same kind of first-hand, pertinent, and highly reliable knowledge about John Roberts that Richard Nixon and his staff had about William Rehnquist. And that worked out pretty well over time, didn't it?

Again, for reasons of precedent and preservation of executive privilege, Dubya won't and can't share those private, confidential documents, nor those private, confidential personal assessments, with you, me, or the Senate. But he has them; they're incredibly meaningful; and we have every reason to believe that Dubya has made very, very good use of them.

Now, Beldar is right on this count as well. But I can understand why the Senate will find this fact frustrating, because it means that the President (any President) will have a built-in informational advantage over the Senate in evaluating former Executive Branch attorneys (the advantage might be reversed if, like Steven Breyer, the attorney had counseled a Senator or Senate Committee).

A related point arises for questions the judge will not want to answer before the Senate. (As Leon H at RedState points out, Democrats like Joe Biden took the position in 1993 that then-Judge Ginsburg did not need to answer those questions). A shrewd Senator would press to know what the nominee told the President, which at least would foreclose the nominee from being wholly evasive. Although once again, it's unlikely that the President asked terribly specific questions, knowing this hazard was out there.

Posted by Baseball Crank at 12:46 PM | Law 2005 | Comments (0) | TrackBack (0)
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