Carol Platt Liebau: Sounds Like a Conservative to Me

Sunday, August 21, 2005

Sounds Like a Conservative to Me

The Washington Post today tries to sum up the contents of some of John Roberts' memos during his years in the Reagan Administration.

His writings sound pretty normal and conservative to me. But note the Post's snarky description of Roberts as "A successful son of the American establishment." As opposed to whom? Radical outsiders like Justices Ginsburg or Breyer? If there's a justice from outside the corridors of the "American establishment," it's Justice Thomas. But I don't seem to recall that fact making the Post any more in favor of his nomination and confirmation.

25 Comments:

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10:56 AM  
Blogger Draino said...

Isn't it great to be able to say anything and not be held accountable! Too bad George Bush doesn't seem to enjoy that privilege as much these days.

On what are you basing your claim that Ginsburg and Breyer are "radicals"? Because a democratic president nominated them to the bench? They were obviously moderate enough to be approved by the republican majority that led the Senate. I suppose you consider O'Connor a radical too even though she concurred with Rehnquist on 80% of the court's opinions. This trick of calling moderates "radicals" to make the radical right seem moderate is so tired people see through it just like they see through this... "We're fighting the terrorists over their so we don't have fight them at home.." Boring, next.

1:58 PM  
Blogger Mr. Twister said...

Hey Draino,

It's fairly clear that Carol was using the phrase "radical outsiders" with more than a dollop of snarkiness. She was trying to make the point that both Ruth Bader Ginsburg and Stephen Breyer are as much a part of the American establishment as Judge Roberts.

Carol would never think of seriously labelling either Justice Ginsburg or Justice Breyer as "radical" given that they were both suggested to Bill Clinton as possible Supreme Court Justices by Senator Orrin Hatch. (Or at least that is what Sen. Hatch claims in his autobiography.)

2:29 PM  
Blogger Draino said...

Hey Twister,

Thanks for pointing out the sarcasm, man. Given that she called maimed vets, mothers of killed soldiers and the an entire academic institution "radical" I couldn't tell. Besides, why would she defend Ginsburg and Breyer? I mean, unlike Roberts, we don't know where they stand on the most important issue of the day - MICHAEL JACKSON!!

5:00 AM  
Blogger Wascally Wabbit said...

draino,

Not only were Ginsburg and Breyer nominated by a Democratic president, they were confirmed by a Democrat-majority Senate. Ginsburg was nominated and confirmed in 1993; Breyer in 1994. Republicans didn't take control of the Senate until Jan 1995, after the Nov 1994 elections.

The difference was the Republican minority refrained from engaging in, or even considering, wholesale obstructionism to oppose either of Clinton's nominees.

What goes around, comes around, however. The next time a Democratic president nominates a Supreme Court justice, it probably won't be as smooth sailing as Ginsburg and Breyer experienced.

JMHO.

7:41 AM  
Blogger Mr. Twister said...

Draino,

I wasn't claiming that Carol was defending Ginsburg and Breyer. I was merely pointing out that she was using "radical outsiders" sarcastically.

Cheers.

9:42 PM  
Blogger Mr. Twister said...

Wascally Wabbit, you are more than a little confused about cause and effect. Reread my post that Draino was responding to.

As President, Bill Clinton took the "advise" part of "advise and consent" seriously. In his autobiography Orrin Hatch claims to have first offered both Ginsburg's and Breyer's name to to Clinton as possible Supreme Court Justices.

Did President Bush take advice from Patrick Leahy, Joe Biden, or Ted Kennedy on Judge Roberts? I think you know the answer to that. This is yet further evidence that unlike the current administration, William Jefferson Clinton actually cared about being the President of all Americans as opposed to being the President of 50% + 1.

9:49 PM  
Blogger Wascally Wabbit said...

Mr. Twister,

I can assure you, I have no confusion on this issue at all.

First, my reply to Draino was primarily intended to simply correct a factual error he had made when he asserted that it was a Republican-majority Senate, rather than a Democrat-majority Senate, that Clinton had to gain approval from for his nominees.

It’s useful to note that Hatch, in his autobiography, states that with respect to Ginsburg and Breyer, he acknowledged that “while liberal, they were highly honest and capable jurists”. Hatch and the Republican minority were magnanimous enough to refrain from politicizing and obstructing the confirmations of justices that many certainly did not see as their ideal jurist.

Meanwhile, Judge Roberts can fairly be described as: while conservative, he is a highly honest and capable jurist. The ABA has designated him as “well qualified”. President Bush DID consult with Democratic Senators while considering who to nominate, contrary to your intimations. Prior to Bush’s decision, Democratic Senator Byrd was publicly quoted telling the President “I am shouting your name from the steeple tops for reaching out, reaching across the aisle.” AFTER the Roberts nomination was announced, he further stated that “I thank President Bush for reaching out to senators on both sides of the aisle as he worked to select a nominee for the court.” This renders your snarky “50% plus 1” comment as disingenuous at best.

Roberts, it should be noted, is far less conservative than some of the others on Bush’s short list, such as Luttig and Brown. Do you know for sure that Bush’s decision wasn’t influenced by his understanding of concerns from the Democratic side of the aisle as to what type of candidates would be less likely than others to face Democratic obstructionism? “Advice and consent” from the Senate is not synonymous with dictating to the President who he can and cannot nominate, a distinction that seems lost on some from the left.

Roberts is a decent, thoughtful, well-respected jurist with an admirable record, just as Ginsburg and Breyer were. He deserves the same regard and respect in his confirmation hearings that they got; I highly doubt that he will get it.

11:06 PM  
Blogger Sam Freedom said...

Ah, I love being independent so I don't have to factually correct any of you or make anyone wrong. I simply choose to. ;-)

Ok, all seriousness aside, maimed vets (some, not all) and mothers of slain vets (some, not all) are definitely radical when they think they should get not only 1 meeting with the president, but TWO.

The only one who wins in this event is the company that rents the Porta-Johns.

I believe the mentally disordered already sent their best boy, Michael Moore over to show the same disrespect and mischaracterizations to Bush as he made to Charlton Heston in "Bowling for Columbine" - and he not only failed miserably, but had it all brilliantly exposed in Farenhype 911.

So do you left wingers have nothing better to do than have nothing better to do, or do you even take a break from this uselessness to smoke pot anymore?

Sincerely,
Sam

1:46 AM  
Blogger Draino said...

Very effective and intellectual argument there Sam. Glad to hear how independent you are. I think Freedom means you are actually allowed to disagree with your governement. You may think people who disagree with you are useless but you are now in the minority since 54% of American's now think Iraq was a mistake. I must say though, Republicans are very good at attacks. Too bad they don't spend as much energy attacking the terrorists as they do bashing liberals and outing CIA agents. If they did we would have won the war already.

3:31 PM  
Blogger Mr. Twister said...

I'm not exactly sure what sam and draino are talking about, so I'll skip back to Wascally Wabbit's comments.

Let's start with ww's original comment

The difference was the Republican minority refrained from engaging in, or even considering, wholesale obstructionism to oppose either of Clinton's nominees.

Although the Republicans did not actively oppose Clinton's Suoreme Court nominees, it was not because they were high-minded idealists, as you are suggesting.

Throughout the Clinton Administration the Republican Senate, first as a minority and later as a majority, engaged tirelessly in "wholesale obstructionism" when it came to Bill Clinton's judicial nominees in general. This was aided by Senate judiciary precedents related to blue slips and Committee Rule IV. (I'm sure wascally can explain both of these as he/she seems knowledgeable--honest compliment.)

With this adversarial relationship in mind Bill Clinton nominated Justices Ginsburg and Breyer. As Orrin Hatch noted in his autobiography, "I told him [Clinton] that confirmation would not be easy. At least one Democrat would probably vote against Bruce [Babbitt], and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court."

Orrin Hatch was the ranking minority member of the Judiciary Committee, a position held by Pat Leahy today. Hatch is (roughly) as conservative as Leahy is liberal.

Wascally, are you claiming with a straight face that Judge Roberts would have been high on Patrick's Leahy's list of possible Justices? Do you think Leahy offered Roberts' name to President Bush? How would have Republicans like Carol responded if he had?

Roberts, it should be noted, is far less conservative than some of the others on Bush’s short list, such as Luttig and Brown.

How do you know this, wascally? Seriously, I have heard this claimed quite a bit, but I don't know what evidence supports it. From the reviews I've seen of the Reagan era memos that have been released, Judge Roberts was significantly to the right of Ted Olsen in the 1980s.

Have these opinions changed over time? How can we tell? The Senate and the American public is being denied acccess to the documents that would help show one way or another, and Judge Roberts has a miniscule written record as a jurist. Furthermore, the Republican media machine is pushing the claim that asking Judge Roberts anything other than his favorite flavor of ice cream is completely out of bounds.

Roberts is a decent, thoughtful, well-respected jurist with an admirable record, just as Ginsburg and Breyer were. He deserves the same regard and respect in his confirmation hearings that they got;

I agree he deserves the same respect, but you are overlooking one HUGE difference between the Clinton nominees and Judge Roberts. Both Ruth Bader Ginsburg and and Stephen Breyer had, at the time of their confirmation hearing, paper trails that were as wide as the day is long. Judge Robert does not have this, and the Administration is actively trying to limit the amount of information the Senate has to make it's decision.

Short and sweet, President Bush had access to Judge Roberts writen records from his time in the Solicitor General's office that the President could use to base his decision on. The Senate should have access to the same records in order to make an informed decision. If the only thing the records show is that Judge Roberts is a conservative, then, by your logic, there is no reason not to release them.

Why won't the Bush administration release the records? What are they hiding?

11:35 PM  
Blogger Wascally Wabbit said...

This comment has been removed by a blog administrator.

7:33 AM  
Blogger Wascally Wabbit said...

Mr. Twister,

Very interesting and provocative discussion. Now, on to the fray.

You ask: “Wascally, are you claiming with a straight face that Judge Roberts would have been high on Patrick's Leahy's list of possible Justices? Do you think Leahy offered Roberts' name to President Bush?”

What I said was that President Bush had consulted with Democratic Senators (and,it should be noted, this included Leahy) prior to making his decision. Where do you extrapolate that into a suggestion that I’m “claiming” that Roberts would have been high on Patrick Leahy’s list of possible justices? It does appear, however, that you are suggesting that a President is now all but OBLIGATED to select his nominee from a short list of candidates provided by a minority party Senator, based solely on the Clinton/Hatch precedent (which was itself UNprecedented). I strongly disagree. Neither of us was present during the consultation meetings, but it’s possible that had Leahy provided Bush such a list (and I don’t know whether he did or didn’t), that the people on said list may not have been as conservative as Hatch’s suggestions to Clinton were liberal. Again, the “advice” part of advice and consent in no way compels a President to choose from a list of candidates handed to him from an opposition party Senator. President Bush’s efforts to reach across the aisle to confer/consult on the nomination were good enough for Senator Byrd (not a Bush lapdog by any stretch of the imagination); clearly they weren’t good enough for you. Best I can tell, only a nominee from a list provided to him from Senator Leahy would have been sufficient to meet your standards and expectations. Well . . . I’m sure that you would be thrilled to have Sen Leahy function as the President’s primary Supreme Court judicial nomination agent, but your expectations are simply unrealistic. IMHO.


“Both Ruth Bader Ginsburg and and Stephen Breyer had, at the time of their confirmation hearing, paper trails that were as wide as the day is long. Judge Robert does not have this, . . .”

Yes, Roberts has had a relatively brief tenure as a jurist. However, as we speak, people from both sides of the aisle are poring over boxes and boxes (at least 41 at last count) of papers from Roberts’ past writings, commentary, and opinions. Seems like a pretty substantial paper trial to me, in the aggregate. Regarding release of confidential records from the Solicitor General’s office – can you point to any prior instance where such records have been publicly released? By any previous President, for any reason or purpose? If you can establish such a precedent, then I’d be willing to concede that you may have a point where it would be appropriate in this case as well.


“the Republican media machine is pushing the claim that asking Judge Roberts anything other than his favorite flavor of ice cream is completely out of bounds.”

Certainly Roberts can be asked any questions that anyone wants to ask him. My question to you would be: what kinds of answers will be sufficient and acceptable to you? Suppose, during his upcoming confirmation hearings, Roberts were to provide answers to questions of how he would rule on particular cases and issues along the lines of the following:


"I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews,"

"my own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge."

"I prefer not to address a question like that." (responding to a question about the religion clauses of the First Amendment)

"I would prefer to await a particular case." (responding to a question on interpretation of precedent on religion and the First Amendment)

"Senator . . . , that is the kind of question that a judge cannot answer at-large." (responding to a question regarding school vouchers)

"Senator . . ., aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out."

"Anything I say could be taken as a hint or a forecast on how I would treat a classification that is going to be in question before a court." (responding to questions regarding homosexual rights)


All of the above answers, of course, were provided by Justice Ginsburg during her confirmation hearings in 1993, where she chose not to answer more than 30 questions. Perhaps if she’d been asked what her favorite flavor of ice cream was, she would have given a straight answer.

Ginsburg cited Canon 5 of the American Bar Association's Model Code of Judicial Conduct which prohibits a candidate for judicial office “from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views." Ergo – “no hints, no forecasts, no previews”.

Actually, that’s not unreasonable. And, it worked for Ginsburg. Do you think the same considerations and standards should, or will, be applied to Roberts in his hearings? Or is his case “different”? Will the “no hints, no forecasts, no previews” mantra accepted during Ginsburg’s hearings be applicable to Roberts as well, or will those standards no longer be “operative”?

I suspect we both know the answers to those last questions. Of course this will be “different”.

It’s always “different” when the candidate is a conservative.

7:56 AM  
Blogger Mr. Twister said...

Wascally Wabbit,

Very interesting and provocative discussion. Now, on to the fray.

Agreed and agreed.

What I said was that President Bush had consulted with Democratic Senators (and,it should be noted,this included Leahy) prior to making his decision.

I should have been more clear in my criticism. From the Orrin Hatch incident we learn that when Bill Clinton was seeking a "confirmable" candidate, he did that the old-fashioned way by meeting with Republicans and taking their opinions seriously. The Bush administration, on the other hand, views "confirmability" to be a synonym for "stealth candidate."

Again, the “advice” part of advice and consent in no way compels a President to choose from a list of candidates handed to him from an opposition party Senator.

Just to make my position clear, I feel that any President should have almost unlimited discretion with respect to non-judicial appointment and wide latitude in his nomination of judges. The founders were fairly clear, however, that the Senate is a co-qual partner in the final appointment of judges. As such, the Senate should be granted broad deference to their role in the process. Part of this deference is that the President needs to accept that the Senate needs to have the information available to make a determination as to the suitability of the nominee.

Yes, Roberts has had a relatively brief tenure as a jurist. However, as we speak, people from both sides of the aisle are poring over boxes and boxes (at least 41 at last count) of papers from Roberts’ past writings, commentary, and opinions. Seems like a pretty substantial paper trial to me, in the aggregate.

While by volume, I agree this seems impressive, you are apparently not hearing the same spin I am hearing. When confronted by seemingly "outrageous" quotes from Roberts' time in the Reagan administration, we are told that everyone says some kooky things when they are young. A good example of this is Phyllis Schafly's response to Roberts' homemakers to lawyers "joke." According to Schafly, Roberts sounded a little "smart-alecky," but she was certain he had grown up since marrying his wife.

Are we just to take Phyllis Schafly's guess on this matter? Why? There are plenty of later documents we could read, if the Bush Administration wasn't stonewalling the issue.

Regarding release of confidential records from the Solicitor General’s office – can you point to any prior instance where such records have been publicly released? By any previous President, for any reason or purpose? If you can establish such a precedent, then I’d be willing to concede that you may have a point where it would be appropriate in this case as well.

Sure--three quick precedents come to mind. During the confirmation hearings of William Rehnquist for Chief Justice, the Reagan administration turned over memos Rehnquist wrote as legal counsel to President Nixon. The Reagan administration also turned over legal opinions written by Robert Bork as Solicitor General for Nixon. Finally, we have the sad, strange case of Ken Starr and his stalking of President Bill Clinton.

Ken Starr subpoened legal documents written by Clinton's office of legal counsel. Clinton refused to turn them over arguing the same attorney-client privilege that President Bush claims now to withhold the Roberts' documents. Starr took the Clinton administration to court and won. Quoting from the Eighth Circuit Opinion, "Nor do we foresee any likely effect of our decision on the ability of a government lawyer to advise an official who is contemplating a future course of conduct. If he attorney explains the law accurately and the official follows that advice, no harm can come from later disclosure of the advice, which would be unlikely anyway." And from the right-wing there was much rejoicing. Unfortunately, what is sauce for the goose is sauce for the gander.

Do you think the same considerations and standards should, or will, be applied to Roberts in his hearings? Or is his case “different”? Will the “no hints, no forecasts, no previews” mantra accepted during Ginsburg’s hearings be applicable to Roberts as well, or will those standards no longer be “operative”?

First, note that nominees Ginsburg, Breyer and Bork all answer questions directly about Roe or abortion (to take a specific example). Similarly, nominees Kennedy, O'Connor and Souter all answered more generalized questions about the right to privacy. All this to point out that it would be outside established precedent for Judge Roberts to use what you call the Ginsburg "mantra" in response to questions along the lines of, "Do the fifth, ninth, and fourteenth amendments establish Constitutional unenumerated rights, and is a right to privacy among these?" or "Was Roe v. Wade correctly decided--how about Griswold v. Connecticut?"

Second, while I feel that similar standards should be applied to Judge Roberts as were applied to Ruth Bader Ginsburg, there is the one caveat which I've already stated. Judge Roberts is a stealth candidate. He was chosen precisely because he has no written record. As such, more latitude needs to be granted during his confirmation hearings to try and discern his judicial philosophy.

I suspect we both know the answers to those last questions. Of course this will be “different”.

It’s always “different” when the candidate is a conservative.


Precisely because Republican administrations view confirmability as choosing conservative nominees who have little or no paper trail. Senators are not provided the information they need to fulfill their Constitutional role, which is, at minimum, to make an informed decision on suitability of the candidate.

The Bush administration could make this much easier and smooth the whole confirmation process by releasing the documents from Roberts' time in the Solicitor General's office. Yet they refuse to do so. That they refuse for no readily apparent reason (given prior precendent and the Eighth Cicuit opinion against Bill Clinton) brings us full circle to the two central questions I have been asking...

Why won't the Bush administration release the Roberts' documents? What are they hiding?

9:29 PM  
Blogger Wascally Wabbit said...

Kudos to you, Mr. Twister. I continue to disagree with most of your positions, but you have presented many of your arguments knowledgeably and well.

Now, back to the fray yet again.

Your central premise clearly appears to be that if “different” standards are to be applied to Judge Roberts, as compared to Ginsburg and Breyer, that it results from, compensates for, and is justified by the lack of a suitable paper trail to discern Roberts’ judicial philosophy.

It sounds reasonable on the surface, but there’s an element of disingenuousness to that argument in general (not necessarily on your part – you’ve given me no reason to doubt the sincerity of your position) that needs to be addressed.

Face it - there is a part of the body politic that has already made up its collective mind about Roberts, and is looking less for clues as to his judicial philosophy – the surface argument - as much as it is looking for ways to smear him, sufficient to trigger the “exceptional circumstances” filibuster that is really the only credible hope for derailing his confirmation. Hints of this have already emerged; one instance is the portrayal of his long-ago, mainstream critique of the discredited concept of government- (or judge-) determined "comparable worth" pay scales. Some in the left wing press have subsequently used this to slam Roberts for this purported "hatred" of women, which is really strange when you consider that there are legions of women that also think that comparable worth is a pretty nutty idea.

Regarding the whole “paper trail” issue, it seems to me that it’s worth asking: Do anti-conservative judge activists relentlessly pursue every scrap of paper that can be found to demean, degrade, and undercut the character and reputation of the nominee in question because there’s a “miniscule” paper trail? Or do Republican presidents tend to nominate so-called “stealth” nominees because they can count on – no matter what - intense efforts to dig up and scrutinize something – anything! - negative that can be associated with and flung at the candidate, and therefore seek to minimize the availability of what their adversaries are looking for to bludgeon them with? Heck, in Bork’s case the “paper trail” extended to video rental receipts of movies he had rented, hardly part of a sober, rational process designed merely to discern the nominee’s “judicial philosophy”. (Those were no doubt dug up by activists/reporters concerned about maintaining the “constitutional right to privacy” – sorry, pretty snarky, I acknowledge). And let’s not even get into the whole Thomas debacle, where the allegations brought against him that nearly derailed him had nothing to do – at least on the surface – with his judicial philosophy. As much as you appear to be disgusted by Starr’s “stalking” of President Clinton, so are many of us equally appalled at the “borking” of Justice Thomas, by flimsy allegations that paled in comparison to the similar, but more numerous and far better documented, transgressions later committed by the aforementioned President Clinton.

It’s really a chicken-egg sort of thing at this juncture between the impetus to dig far deeper than warranted on one side, and the concurrent effort to minimize what the prospective justice can be smeared with on the other. It’s now a vicious circle in which each both causes, and is perpetuated by, the other.

It’s not so much deviousness, IMHO, that drives the effort to find so-called “stealth” candidates as it is survival and pragmatism. If Bush were to nominate a conservative with the much-wished-for paper trail, he can count on instant filibuster. If he nominates a “moderate”, he gets slimed from both ends of the political spectrum, and he risks another Souter (a “stealth” candidate that hasn’t worked out so well for conservatives/Republicans - there are risks, and “stealth” candidates can cut both ways). And he sure isn’t going to nominate a known liberal – he’s a Republican with a Republican-majority Senate, for crying out loud - no matter how much that would smooth the way with the opposition party. So it seems to me, from the Republican perspective, nominating candidates that provide the best balance between being reasonably likely to apply a somewhat conservative approach to the bench, while concurrently trying to avoid nasty character-degrading shriek-fests and obstructionism from the opposition based on what they can dig up from the candidate's paper trail, is the least bad and most pragmatic option available.

Furthermore, I don’t buy the contention that the Senate – and particularly its minority party contingent - is a “co-equal” partner in selecting justices for the Supreme Court. That seems to be a view that has come in to vogue only recently, coincidentally about the time that Republicans concurrently gained control of both the Presidency and the Senate.


“ Sure--three quick precedents come to mind . . . . what is sauce for the goose is sauce for the gander.”

Well . . . a deal’s a deal.

Regarding the prospective release of papers from Roberts’ time in the Solicitor General’s office, you m-m-may . . .

You m-may have a p-p-poi . . .

You may have a point there.

(Man, that wasn’t easy)

Cheers

2:20 AM  
Blogger Mr. Twister said...

there’s an element of disingenuousness to that argument in general [that Judge Roberts needs to be held to higher scrutiny because he has a thin paper trail--mt]

I admit there is a bit of disingenuousness to my argument also. As I said before, my personal opinion is that the President should have wide latitude in nominating judges. There are two caveats to this, however, that my argument is buttressing.

First, while any President is free to nominate who he will, he should also be willing to be accountable to the public for making that appointment. With stealth candidates, Presidents abdicate this responsibility.

Secondly, the Senate is a co-equal partner in the process. (I know you disagree, and I will respond to that below.) As such, the Senate should have access to the same information about a nominee that the President had in slecting between candidates.

there is a part of the body politic that has already made up its collective mind about Roberts, and is looking less for clues as to his judicial philosophy – the surface argument - as much as it is looking for ways to smear him, sufficient to trigger the “exceptional circumstances” filibuster that is really the only credible hope for derailing his confirmation.

So, you are claiming that if Judge Roberts wrote documents during his time in the Solicitor General's office that would be considered "exceptional circumstances" it would be best if the public is not made aware of them. I'm not crazy about giving a person a lifelong appointment to the highest court in the land merely because we were ignorant of his views, which would have disqualified him had we been made aware of them.

Secondly, I can think of nothing more exceptional than having a President refuse to turn over to Congress documents that courtesy, precedence, and legal decisions would require. To my thinking the failure to turn over the Roberts' documents is more likely to lead to a filibuster than anything Judge Roberts wrote in those documents.

Or do Republican presidents tend to nominate so-called “stealth” nominees because they can count on – no matter what - intense efforts to dig up and scrutinize something – anything! - negative that can be associated with and flung at the candidate, and therefore seek to minimize the availability of what their adversaries are looking for to bludgeon them with?

As to why Republican Presidents nominate stealth candidate, I will let Carol answer that one. In a post from today, 8/27/2005, Ms. Liebau writes about Judge Roberts,

"The prudence that Judge Roberts has displayed in his climb to power may be reflective of his behavior once he's on the Court. But it's equally plausible that he may have been prudent during his climb to power so that he'd actually get to a place where the sharp (and often controversial) views set forth in his early memos could have maximum influence."

In other words, his political positions are so unpalatable that Judge Roberts and the Bush administration did well to hide them until he is safely ensconced on the Supreme Court. I wouldn't be altogether proud of this position, but Carol seems to think it's just another point in favor of this nomination.

Furthermore, I don’t buy the contention that the Senate – and particularly its minority party contingent - is a “co-equal” partner in selecting justices for the Supreme Court. That seems to be a view that has come in to vogue only recently, coincidentally about the time that Republicans concurrently gained control of both the Presidency and the Senate.

Well, rather than bore everyone with the history of the judicial appointment clause in the Constitution (until the final draft the Senate had the sole power to nominate and appoint judges, blah, blah, blah), or dry discussions from _The Federalist_, let's see how the founding fathers' actually walked this out.

In 1795 George Washington nominated John Rutledge to be Chief Justice of the Supreme. Judge Rutledge had earlier served as an associate Supreme Court justice, and he resigned in 1791 to become the Chief Justice of the South Carolina Supreme Court. Given his history, there was little question about his qualifications to serve. There was, however, a problem with Justice Rutledge's political ideology, as he vociferously criticized the Jay treaty with Great Britain which the Senate had narrowly passed. To make a long story short, Justice Rutledge was rejected. In repsonse, George Washington said, "Just as the President has a right to nominate without assigning reasons, so has the Senate a right to dissent without giving theirs."

So... while you may think the "co-equal partner" claim is relatively new, it actually dates to the founding of the Republic. As this was also three score years prior to the founding of the Republican party, I don't think you are correct on that score either.

It is also worth talking about the role of the minority party in judicial appointments. The key phrases to google are "blue slip" and "rule IV". Let me point out that under either the original version or first Orrin Hatch revision of blue slip rules, Janice Rogers Brown would have never been brought to the floor of the Senate for a vote. Similarly, she would have also been denied a vote if Orrin Hatch hadn't changed the interpretation of Rule IV that had been around since the early 1900's.

11:41 PM  
Blogger Wascally Wabbit said...

You appear to have spent a tremendous amount of research, time, words, and blogspace to demonstrate little more than the rather universally accepted notion that, with regard to Supreme Court justices, 1) the President’s role is to nominate (or select, or appoint), and 2) the Senate’s role is to approve or disapprove the President’s nomination. While interesting and educational, the discussion of Washington’s appointment of Rutledge, the Federalist Papers, and the onset of the Republican Party did little that I could discern to add to the discussion, or address the point that was the crux of my statement that you were responding to, which is the Senate’s (and, more specifically, the minority party’s) role, in Part 1 of the two-part process described above.

"Just as the President has a right to nominate without assigning reasons, so has the Senate a right to dissent without giving theirs."

Uh, that’s a great quote, but . . . so what? What does it have to do with my statement criticizing the curious notion that the Senate and the minority party should be “co-equal partners” in the selection of a Supreme Court justice? The quote from Washington you provided above, in fact, in no way states or even implies that the President is under any obligation to include the Senate, and particular, the minority party, in his selection (or nomination) process. “The President has a right to nominate . . “ (note: no mention of the Senate here in the nomination or selection process) and “the Senate [has] a right to dissent” (or, by implication, assent) to whomever the President nominates, or selects. As a courtesy, the President may certainly choose to invite members of the Senate to participate in his selection process, but, until recently at least, there was no expectation that he is obligated to do so. That was the point I was making, in response to your earlier contentions, or, at least, strong intimations, that including minority party Senators in Part 1 of the process is now something we should expect President Bush to do when he selects nominees to Supreme Court positions. It is that attitude that is the recent phenomenon, not the notion that the Senate has a right to dissent from a President’s nomination once it has been made.


“I can think of nothing more exceptional than having a President refuse to turn over to Congress documents that courtesy, precedence, and legal decisions would require.”

It’s not quite as simple, nor as “exceptional”, as you would have us believe. In all your exhortations for the administration to release documents from the Solicitor General’s office, you’ve somehow neglected to mention or acknowledge that there are substantial and significant confidentiality issues regarding the release of papers from that office.

There are at least several areas where work done in the Solicitor General’s office warrants confidentiality protection. One is the existence of an attorney-client privilege for communications to and from lawyers like those working in the Office of the Solicitor General when communicating with their governmental client (typically but not always the Executive Branch). In addition, documents written by Judge Roberts when he was the Chief Deputy to the Solicitor General are also likely to be covered by other, distinct privileges — one being executive privilege (flowing from the separation of powers doctrine), and another being the attorney work-product privilege. Any of these three may form a sufficient legal basis for the Bush Administration to refrain from complying with demands from Congress to turn over confidential documents from the SG’s office.

These confidentiality concerns and issues are of a magnitude sufficient to warrant the past seven living Solicitors General to recently (2002) and jointly develop and sign a letter to then-Senate Judiciary Chairman Patrick Leahy. In this letter they warned him of their deep concerns and considered assessment of the significant costs associated with releasing confidential documents of the type and nature that Leahy was then demanding in conjunction with the Estrada nomination for the Federal judiciary, and are now again being demanded in conjunction with Roberts nomination:

"Any attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests – a cost that would be borne by Congress itself."

They went on to say that, while they profoundly respected the Senate’s duty to evaluate a particular candidate’s fitness for federal judiciary positions,

"we do not think that the confidentiality and integrity of [Solicitor General office] internal deliberations should be sacrificed in the process."

Yes, among those seven SG’s are Kenneth Starr and Robert Bork, a fact you’ll no doubt be inclined to seize on. But they also include Seth Waxman (Clinton), Walter Dellinger (Clinton), Drew Days (Clinton), Charles Fried (Reagan), and Archibald Cox (Kennedy), making this a truly bipartisan group that renders it very difficult to try to dismiss them – and their letter - as party to some simple or cynical partisan spin. They are substantive concerns, from substantive, knowledgeable and respected public servants, whose service as Solicitor General spanned over three and a half decades across numerous Presidential administrations from both parties. Speaking only for myself, it would seem that their collective opinion on the issue of releasing confidential SG office records ought to carry more weight than, say, yours.

Your repetitive “what is the administration trying to hide?” comments somehow have managed to omit this important component of the document release issue entirely.

Regarding precedence: in an earlier post you mentioned a couple of instances in which previous administrations had released papers from the Justice Department and the Solicitor General’s office in response to specific requests from the Senate Judiciary Committee. This, presumably, was intended to establish “precedence” for what the current minority party members of the Judiciary Committee are now demanding. What you failed to mention was that the documents the Reagan White House released during Chief Justice William Rehnquist's confirmation in 1986 relating to his previous work at the Justice Department's Office of Legal Counsel were in specific response to a very narrow request for information and related primarily to questions involving appropriate conduct of office. The documents specifically were NOT sought for the purpose of determining judicial philosophy and went only to the Judiciary Committee – that is, they were not released to the public. Similarly, in the case of former Solicitor General Robert Bork’s nomination to the Supreme Court in 1987, some (again, very limited) documents also pertaining to questions involving appropriate conduct of office (not discernment of judicial philosophy) were released to Judiciary. When you imply that these precedents SUPPORT current efforts by Senate minority party members to procure Roberts’ records in order to specifically DETERMINE his judicial philosophy, you’re using earlier narrow requests for a few specific apples to justify – as “precedent” - the current request for complete crateloads of oranges. It’s misleading and disingenuous in the extreme.

So, while you have attempted to portray a distorted picture of an “exceptional” administration defying Congress and ignoring “courtesy, precedence, and legal decisions”, a more complete and balanced assessment shows that the Bush administration is not being particularly “exceptional” (other than its unprompted and unprecedented release of 75 thousand pages of documents relating to Judge Roberts’ past work), is not violating any truly applicable precedents, and is currently following the recent and diligently considered legal opinion of seven distinguished and bipartisan former Solicitors General of the United States regarding the release of sensitive and confidential papers from that office.


“So, you are claiming that if Judge Roberts wrote documents during his time in the Solicitor General's office that would be considered "exceptional circumstances" it would be best if the public is not made aware of them.”

OK, so now we’re being accused of trying to keep highly sensitive and confidential documents from public awareness. Isn’t that the whole idea behind classifying documents as sensitive or confidential? In your earlier comments, you had been making a fairly decent case that it was the Senate, because of its specific role and responsibility to review the record and suitability of the President’s nominee, that ought to have access to the same documents that President had had prior to making his selection. I have acknowledged that there is merit in that position (presuming, of course, that the President actually made use of those documents while reviewing Roberts’ credentials). Such an approach might be a feasible way of balancing the requests from Senators to review Roberts’ record (while swearing them to uphold the confidentiality of the records), while still providing for a way to assuage the Solicitors General’s (past and present) concerns regarding the maintaining of confidentiality of sensitive documents from full-blown and potentially harmful full public display. But now, based on your latest comments above, you seem to have subtly shifted to a contention that it’s the general public that now ought to have access to those confidential records from the Solicitor General’s office. Do you really believe the general public (and, presumably, the news media) have the right to full and unfettered access to heretofore confidential and sensitive documents, particularly in light of the collective opinion against that very thing from all of the living (as of 2002) past Solicitors General? Is the government obligated to abrogate its responsibility to preserve and protect the confidentiality of sensitive documents, simply because one individual that may have seen or made comments on those documents has been nominated to a high level position? Is your apparent conflation of the terms “public” and “Senate” inadvertent, or do you actually believe they’re synonymous? Is your position that the Senate should be able to review the documents (which is what I had thought it was), or that the whole load of confidential and sensitive documents should be released in their entirety to the general public (which is what your position now appears to be based on your comment above)? Are the Senate and the “public” now “co-equal” partners in discharging the Constitutional role of assenting to or dissenting to a President’s Supreme Court nominees? I thought I understood your position, but it appears now to have subtly, yet substantially and significantly, changed. A clarification would definitely be helpful.

9:00 AM  
Blogger Mr. Twister said...

Wascally, points in order...

[Stuff about how Rutledge's case is meaningless deleted--mt]

The point here is made by the Senate itself, "In turning down Rutledge, the Senate made it clear that an examination of a nominee's qualifications would include his political views."

In short, the President doesn't get to pick a Supreme Court Justice (or any judge). The President gets to nominate a potential Justice. The Senate can reject for any reasons they want. Unfortunately, what the right wing is claiming is that the Senate must (essentially) rubber stamp a President's nominee should that nominee be found qualified.

I think your confusion here is that you are conflating the ideas of nomination and appointment. The President has the sole power to nominate. The Senate has the power to confirm (consent). Once a person is nominated and confirmed then and only then can he be considered appointed. It is in this sense that the Senate is a co-equal partner in the appointment process.

There are at least several areas where work done in the Solicitor General’s office warrants confidentiality protection. [blah-blah-blah deleted--mt]

There is one case on point here. As the Eight Circuit noted, finding against Bill Clinton, "If he attorney explains the law accurately and the official follows that advice, no harm can come from later disclosure of the advice, which would be unlikely anyway." Tell me exactly why this ruling doesn't eviscerate every claim you've made in this section.

Speaking only for myself, it would seem that their collective opinion on the issue of releasing confidential SG office records ought to carry more weight than, say, yours.

Speaking only for myself, it would seem that a legal precedent directly on point ought to carry more weight than the "collective opinion" of people with a vested interest.

you’re using earlier narrow requests for a few specific apples to justify – as “precedent” - the current request for complete crateloads of oranges. It’s misleading and disingenuous in the extreme.

Wascally, you can't have it both ways. Releasing any SG documents sets a precedent that refutes your claim that such a release is inherently wrong. The veil has been pierced. These examples provide precedent that SG documents by and of themselves are not privileged.

Now, one can argue about whether specific documents need additional scrutiny (because they raise privacy concerns, for example). Such case by case arguing is different, however, than a blanket claim of privilege.

the Bush administration is not being particularly “exceptional” (other than its unprompted and unprecedented release of 75 thousand pages of documents relating to Judge Roberts’ past work)

Either you are confused or being disingenuous here. The vast majority of the "75 thousand pages of documents relating to Judge Roberts' past work" were from his time in the Reagan administration. The release of these documents is controlled by the Presidential Papers act. The Bush administration had absolutely no say in their release.

OK, so now we’re being accused of trying to keep highly sensitive and confidential documents from public awareness. Isn’t that the whole idea behind classifying documents as sensitive or confidential?

The problem is that no one has made any finding that the Roberts' documents are sensitive or confidential. Instead we have a blanket claim made by the administration that all SG documents are privileged, so no one can even ask that question. This blanket claim stands in contradistinction to established precedent both legally and how it relates to Supreme Court confirmation hearings.

[Senate vs. public piece deleted. mt] I thought I understood your position, but it appears now to have subtly, yet substantially and significantly, changed. A clarification would definitely be helpful.

The Senate Judiciary committee would receive the documents. There are rules and laws related to what a Senator can disclose about any given document and these should be no different. Beyond direct application of the rules of the Senate and laws of the United States, individual Senators are allowed to make use of any information as they see fit. Given the above, how do you plan to enforce a separation between the Senate and the public? The answer is you shouldn't and release to the Senate of non-sensitive material equates with release to the public.

I am sorry to end this on such a coldly pramatic note, but I fall back on the Eighth Circuit's opinion, "Nor do we foresee any likely effect of our decision on the ability of a government lawyer to advise an official who is contemplating a future course of conduct. If he attorney explains the law accurately and the official follows that advice, no harm can come from later disclosure of the advice, which would be unlikely anyway."

And if no harm can arise from disclosure of such legal advice, we are left with the questions...

Why won't the Bush adminsitration release the Roberts' documents? What are they hiding?

11:30 PM  
Blogger Wascally Wabbit said...

I believe we’re in agreement that the Senate, and particularly the minority party in the Senate, does not have a statutory role in the President’s nomination of a candidate, although it may on occasion be a good idea for the President to consult with the Senate prior to making his selection (based on Clinton/Hatch, etc etc, from earlier discussions on the topic). Consulting with members of the Senate, however, confers no direct obligation on the President to select a nominee from suggestions from said consultations, although again that may be a prudent and pragmatic thing to do. On a more general level the Senate has a shared responsibility with the President for the ultimate determination and seating of qualified and acceptable-to-both-institutions justices on the Supreme Court. Here, for the most part, I believe what we’ve been arguing over is semantics.


“ . . . you are conflating the ideas of nomination and appointment.”

Acknowledged. My sloppy use of the term “appoint” as a synonym for “nominate” was indeed in error, and not consistent with the text of the Constitution.


“what the right wing is claiming is that the Senate must (essentially) rubber stamp a President's nominee should that nominee be found qualified.”

Completely incorrect. That’s a straw man setup which puts words into your opponents’ mouths that don’t match their actual positions or beliefs. A more accurate description of what the “right wing” is saying is that if a majority of the Senators present concur with the President that a nominee is qualified and suitable for the high court, then that adequately meets the Constitution’s “advice and consent” provisions and ought therefore be sufficient for the nominee to be appointed to the Court.


“ . . . a legal precedent directly on point ought to carry more weight than the "collective opinion" of people with a vested interest.”

First of all, what exactly is this “vested interest” that you accuse this group of bipartisan, retired former Solicitors General of having? A current Solicitor General might have a “vested interest”; a former Solicitor General like Cox that served his time in that office under a Democratic President thirty-five years ago does NOT currently have a “vested interest” tied to preserving the confidentiality of documents from that office. What he has (and the others have as well) is the considered professional expertise and judgment that derived from his experience in that position, and the more sober, rational and thoughtful perspective that being some distance away from the partisan wrangling provides. Their input, provided in response to a situation directly analogous to the current issue regarding Roberts’ appointment, certainly is more applicable that a Circuit court decision that was rendered in a case that included circumstances entirely different from, and not applicable to, the current issue being debated.

The 8th Circuit Court opinion to which you keep clinging is not, contrary to your assertion, “directly on point” – far from it, in fact. The decision was handed down in response to a subpoena, from a Congressionally appointed Independent Counsel, to assist in informing a Grand Jury during an investigation as to whether criminal, illegal, or negligent wrongdoing had occurred within the office, or by the person, of the President. The court held in that opinion that there was no government attorney-client privilege in CRIMINAL cases, where information is demanded by a grand jury. That is a far different set of circumstances from the current situation, where confidential documents are being sought by minority party-only members of the Senate, only for the purported purpose of finding out what a guy’s opinions may or may not have been. Last I heard, Roberts is not under criminal investigation, so the 8th Circuit Court’s ruling in that case can be reasonably argued as inapplicable to the current issue. That’s not to say that the opinions being sought aren’t of interest or of some importance; the issue is whether a Senate minority party’s request for a comprehensive set of documents for one (I would say lesser) purpose ought to carry the same weight as a subpoena for a more narrowly defined set of documents rendered in support of an Independent Counsel investigation into illegal activities involving the office of the Presidency itself. There is no subpoena underwriting or supporting the requests for SG office documents in the Roberts case. You see the contrasting issues and circumstances as few apples to a few more apples; I continue to hold that it’s a few apples to truckloads of oranges. As an aside, perhaps you can tell us what the Clinton administration was trying to hide when it resisted complying with the Independent Counsel’s subpoena, and then subsequently appealed the 8th Circuit Court’s ruling to the Supreme Court?


“The problem is that no one has made any finding that the Roberts' documents are sensitive or confidential.”

Incorrect, misleading and disingenuous. The former Solicitors General letter in response to demands for such documents in the Estrada case makes precisely the case that SG documents are confidential, and that “the confidentiality and integrity of [Solicitor General office] internal deliberations should [not] be sacrificed in the process” of evaluating “a particular candidates’ fitness for federal judiciary positions”. There are no substantive or discernable differences regarding the status of SG documents for the aforementioned Estrada case, versus that of Roberts case. There’s a precedent there, if you will, and one that’s specifically and directly applicable to this case. Funny how you ignore apples to apples precedents, yet make completely unconvincing stabs at attempting to justify apples to oranges “precedents”.


“ . . . you can't have it both ways. Releasing any SG documents sets a precedent that refutes your claim that such a release is inherently wrong.”

Where did I use the term "wrong"? What I said, or was intending to convey, was that SG office document confidentiality is not a trivial matter. Furthermore, the limited, narrow precedents you cited do not immediately and inherently justify subsequent carte blanche release of any and all SG documents, at any time in the future, by anyone any time someone wants access to them. Those limited and narrow precedents cannot and should not be presumed to be applicable to the current set of circumstances regarding the Roberts nomination.


“The veil has been pierced.”

So what? This is the weakest part of your argument by far. It appears that you are arguing that, once the “veil” has been “pierced”, for even one particular and exceptional reason, the “veil” henceforth disintegrates immediately and completely, and subsequently ceases to exist. And what had been the exception, immediately and irrevocably becomes the rule for any and all future circumstances. This is an uncharacteristically irrational and unsupportable contention, and it’s inconsistent with the generally higher level of arguments you’ve been providing up to this point.


“Why won’t the Bush administration release the Roberts’ documents? What are they hiding?”

Maybe you should start to consider finding ways to ask them more directly, as a potentially more productive and satisfying use of your time. You’re obviously not getting the answers you’re looking for here.

I am glad that your demands that Carol distance herself from Pat Robertson’s remarks were satisfactorily met, however.

5:32 AM  
Blogger Wascally Wabbit said...

Addendum:

“As the Eight Circuit noted, finding against Bill Clinton, "If he attorney explains the law accurately and the official follows that advice, no harm can come from later disclosure of the advice, which would be unlikely anyway." Tell me exactly why this ruling doesn't eviscerate every claim you've made in this section.”


Fine – I will tell you. You cherry-picked – out of context – one isolated passage from the ruling that appears to support your argument, and conveniently skipped over and ignored the more central and applicable parts of the Eight Circuit Court’s decision. One of the reasons the court believed that later disclosure of the advice “would be unlikely anyway” was because it narrowly defined the scope and the conditions under which that advice might potentially be disclosed. Here’s what you omitted/ignored – that part where the court described the specific, narrowly defined circumstances under which its holdings were applicable:

“Assuming . . . that there is a governmental attorney-client privilege in other circumstances, confidentiality will suffer only in those situations that a grand jury might later see fit to investigate. Because agencies and entities of the government are not themselves subject to criminal liability, a government attorney is free to discuss anything with a government official--except for potential criminal wrongdoing by that official--without fearing later revelation of the conversation.”

“Other circumstances”, it can reasonably be presumed, are any instances other than a case in which a grand jury is seeking records in a case in which criminal liability may be an issue. “Confidentiality”, you should note, is described as being at risk “only in those situations that a grand jury might later see fit to investigate". Note also the clear assurance that “a government attorney is free to discuss ANYTHING with a government official – EXCEPT for potential criminal wrongdoing by that official – without fearing later revelation of the conversation."

Under the clear definitions that the Eighth Circuit court provided above, what is the Senate Judiciary committee minority contingent’s justification for demanding those documents? Is there a grand jury involved? Are there any accusations or intimations of criminal wrongdoing involved?

The answer is clear. Since the Senate Judiciary Committee minority contingent’s request does not meet the narrow, clearly specified parameters applied here – grand jury investigation of potential criminal wrongdoing – then your “precedent”, and by extension, the central linchpin of your argument – is rendered inapplicable, and your case disintegrates. It is, in fact, your repeated claim of established “precedent” that has been eviscerated.

7:21 AM  

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