Roberts Papers Will Not Get Extorted
By Captain Ed on Judiciary
Captain's Quarters
The Bush administration made clear that it will not surrender to nor tolerate an attempt to Estradify the nomination of John Roberts to the Supreme Court. Despite calls from a few Democratic Senators this weekend, the White House will not release privileged communications between Roberts and the Reagan and Bush 41 administrations:
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The refusal sets up a showdown between the White House and Democrats on the Senate Judiciary Committee who have said they want to see some of the documents from the time when Judge Roberts worked for previous Republican administrations.
Specifically, Mr. Gonzales said the White House does not want to reveal any documents that are subject to attorney-client privilege. Doing so, he said, would "just chill communications between line attorneys and their superiors within the Department of Justice."
Some documents, however, might fall outside the privilege and will be handed over on a "case-by-case" basis, said Mr. Gonzales, adding that the administration would "be as accommodating as we can."
Former Sen. Fred Thompson, the Tennessee Republican assigned to shepherd Judge Roberts through the confirmation process, said yesterday that all living solicitors general -- both Democrats and Republicans -- have urged the White House to keep the lid on those documents.
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The former solicitors general made their opinion known during the confirmation battle of Miguel Estrada to the federal appellate court, but to little avail. At the time, the Democrats only had a three-seat disadvantage and they maintained the filibuster on Estrada regardless of how Estrada's predecessors and successors at the SG testified. The Democrats used their fishing trip in the waters of attorney-client privilege to paint the Bush administration as excessively secretive and Estrada as hiding something, justifying (in their minds) the continuous stall tactic. Estrada later withdrew his name in frustration.
Pat Leahy calls the privilege issue a "red herring," saying that the SG works for the American public and not as a private attorney to the White House. However, the concept is still the same. All administrations rely on the SG to help them formulate their legal strategies, and in so doing require some degree of privacy. Saying that the privilege does not exist because American taxpayers pay the bill would then open the question of whether public defenders have any claim for the attorney-client privilege, either.
Besides, the only red herring in this story is the notion that these memoranda have any bearing on Roberts' qualifications to the bench. They don't; like Estrada, the Democrats want to fish for anything they can quote out of context to paint Roberts as an extremist. They need to do this in order to continue using judicial confirmations as political warfare. They need to guarantee continuing liberal control of the highest courts in order to push those policies which could not possibly win in open voting into law through judicial fiat. More pointedly, they need to guarantee that a new court of judicial constructionists don't reverse the activist decisions that enacted so much of what used to be their political agendas.
The dishonest methods they use to block confirmations -- demanding that nominees publicly prejudge issues that will come before them and attempts to violate attorney-client privilege -- show their desperation and their lack of ethics in preserving their back channel for their failing policies. The Bush administration must keep its spine stiffened on this point, and break out the Byrd option at the first hint of a filibuster. If the Democrats attempt to Estradify a Supreme Court nominee the way they've done to John Bolton, they will kiss their red-state Senate seats goodbye in 2006, and perhaps hand the GOP a filibuster-proof minority.
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