TCS Daily

Estradification of the Partisan French Fry Guy

By Pejman Yousefzadeh - July 27, 2005 12:00 AM

Despite the fact that Democrats and left-of-center interest groups have prepared assiduously to oppose any Supreme Court pick not to their liking, they appear to have been caught flat-footed by the nomination of Judge John Roberts to the United States Supreme Court. In large part, this reflects a disconnect between Democratic Senators and the base of the party. While the base appears to want to fight the Roberts nomination, Democratic Senators are at the very most cautious about confronting the nominee and many seem to believe that Judge Roberts will eventually and inevitably be confirmed by the Senate. The casual observer may think that this political battle is as good as won for the White House.

It may eventually be that way. But the White House and Roberts-backers in general need to be prepared for the possibility that the confirmation battle will eventually get quite intense. They need to be prepared for the talking points that are now being disseminated -- talking points that aim to do damage to the Roberts nomination. And they need to be prepared to beat those talking points back.

  • "Estradification." Just as "borking" has entered the vernacular after the confirmation battles over Judge Robert Bork, "Estradification" has become a political term of art as well. The term is best described in this post and refers to the practice of "requiring the Justice Department to turn over internal legal memoranda" written by a judicial nominee -- memoranda that would be privileged and thus not subject to disclosure in the first place -- and then making the refusal to surrender those documents the basis for any opposition to a nominee. Indeed, even before Judge Roberts was nominated, we learned that Democrats were already planning to base their opposition on any nominee on the premise that the White House will not have provided sufficient cooperation in releasing documents about the nominee. And rather amazingly, Senator Patrick Leahy -- the ranking Democrat on the Senate Judiciary Committee -- claims that there is no attorney-client privilege covering Judge Roberts's writings as a lawyer in the White House Counsel's Department during the Reagan Administration and as a lawyer in the Office of the Solicitor General.

        With regard to any documents drafted by Judge Roberts in his capacity as 
        an attorney discussing cases on his desk -- and contrary to the ill-informed 
        comment made by Senator Leahy -- attorney-client privilege and work product 
        privilege applies to a whole host of documents that would qualify as 
        communications from Judge Roberts to his client (either the President of 
        the United States during Judge Roberts's time as a lawyer in the White House 
        Counsel's Office or regarding interoffice memoranda written during Judge Roberts' 
        time in the Office of the Solicitor General). There would be nothing that 
        Judge Roberts could do in order to release such documents to the public. A lawyer 
        cannot waive either the work-product privilege or the attorney-client privilege. 
        Only the client can and the privilege will remain in perpetuity unless Judge 
        Roberts's former clients decide otherwise.

        Releasing internal memoranda written by Judge Roberts would institute a 
        chilling effect that would prevent future government or private sector lawyers 
        from rendering honest and unvarnished analysis for fear that if they were 
        ever appointed to higher government positions or judicial offices that require 
        Senate approval, their memoranda could be cited -- and twisted -- to try to 
        defeat their nominations. Without the shield of privacy that is traditionally 
        afforded to interoffice memoranda, lawyers will be deterred from spelling out 
        their views and analysis in the honest manner that is necessary to ensure the 
        most accurate appraisal possible of important legal issues.

        Moreover, where do such fishing expeditions end? Judge Roberts worked in the 
        Office of the Solicitor General, in the Office of the White House Counsel, as a 
        partner at the law firm of Hogan & Hartson and in his present capacity as a 
        judge on the D.C. Circuit Court of Appeals. If "Estradification" is a sound policy, 
        then logic dictates that any of the memoranda written in any of these positions 
        should be made public. But this would make a mockery of the work-product 
        and attorney-client privileges itself, as well as further poisoning and politicizing 
        an already debilitated and overly partisan judicial confirmation atmosphere.

        · "He's a partisan!" Another emerging argument against Roberts revolves 
          around the claim that he is too much the Republican partisan to be able 
          to serve dispassionately as a Justice on the United States Supreme 
          Court. Most of the "substance" surrounding this charge revolves around 
          the fact that Judge Roberts represented then-Governor Bush during 
          the Bush v. Gore election controversy in 2000.

        I suppose it should come as little surprise to find out that many -- if not 
        most -- Supreme Court Justices and aspirants to the Court are political 
        creatures to at least some extent. What is surprising, however, is that this 
        should somehow be a disqualifying factor for Judge Roberts when past political 
        activity plainly did nothing to prevent other nominees from getting the chance 
        to sit on the Supreme Court.

        Chief Justice Earl Warren -- let us remember -- was at one time, Governor of 
        California. He ran as the Republican Vice Presidential candidate in 1948 and in 
        1952 he helped secure the nomination of Dwight D. Eisenhower as the Republican 
        Presidential candidate by releasing California delegates from any obligation to 
        vote for him at the Republican National Convention. Justice Byron White used 
        his celebrity as a star football player to head up John F. Kennedy's 
        Presidential campaign in the state of Colorado (White's home state). More 
        recent Justices have had political backgrounds as well. Justice Ruth Bader 
        Ginsburg served as General Counsel of the American Civil Liberties Union and 
        Justice Stephen Breyer served as special counsel of the Senate Judiciary 
        Committee from 1974-75 and as Chief Counsel of the Committee from 1979-80.

        All of these Justices had political backgrounds -- backgrounds more 
        pronounced than that of Judge Roberts in the eyes of some -- before becoming 
        Supreme Court Justices. None of them had their political backgrounds 
        held against them in any way. Why should Judge Roberts? Indeed, it should be 
        noted that praise for Judge Roberts's temperament and fair-mindedness 
        extends across partisan boundaries, as this profile makes clear. No one should 
        doubt that Judge Roberts has convictions and opinions. No one should be 
        surprised that those convictions and opinions have occasionally caused Judge 
        Roberts to enter the political arena. But it would be more than a little shocking 
        if Judge Roberts's political activity -- limited as it was -- would be used against 
        him as some kind of demerit in the upcoming confirmation hearings.

        · The "french fry" obstacle to confirmation. One of the cases in which 
          Judge Roberts wrote an opinion was Hedgepeth v. Wash. Metro. Area Transit Auth. 
          As Judge Roberts himself notes in his opinion, the facts of the case 
          are not pleasant at all:

                No one is very happy about the events that led to this           
                litigation. A twelve-year-old girl was arrested, searched, and 
                handcuffed. Her shoelaces were removed, and she was 
                transported in the windowless rear compartment of a police vehicle 
                to a juvenile processing center, where she was booked, 
                fingerprinted, and detained until released to her mother some 
                three hours later -- all for eating a single french fry in a 
                Metrorail station. The child was frightened, embarrassed, and 
                crying throughout the ordeal. The district court described the 
                policies that led to her arrest as "foolish," and indeed the policies 
                were changed after those responsible endured the sort of publicity 
                reserved for adults who make young girls cry. The question before 
                us, however, is not whether these policies were a bad idea, but 
                whether they violated the Fourth and Fifth Amendments to the 
                Constitution. Like the district court, we conclude that they did 
                not, and accordingly we affirm.

        As the quote makes clear, Judge Roberts believed that the policy that led 
        to the arrest was a silly one and approvingly quoted the district court's opinion 
        that the policy was "foolish." But the specific question before the district court 
        and before the D.C. Circuit Court of Appeals on which Judge Roberts sits 
        was not whether the policy was "foolish." Rather, it was whether there were 
        specific constitutional violations that took place in the course of the arrest.

        Some people, apparently, don't get this. Dahlia Lithwick -- a lawyer 
        herself -- writes that Judge Roberts "seemingly finds arresting [children] for 
        French-fry possession to be a cornerstone in good parent-child relations." 
        Nothing could be sillier. As both the blog Patterico's Pontifications and BeldarBlog 
        have noted, there is nothing in Judge Roberts's opinion to cause anyone to 
        believe that he is an advocate of "arresting children for French-fry possession." 
        Judge Roberts was confronted with specific Fourth and Fifth Amendment 
        questions that were independent of the policy in question. His role was not to 
        serve as a legislator discussing the merits and demerits of the policy in 
        question. Indeed, one cannot help but wonder as to why this issue is a 
        partisan matter at all, especially given the fact that the district court judge 
        who originally found that there were no Fourth or Fifth Amendment violations -- 
        Judge Emmet G. Sullivan -- was nominated to the district court by President 
        Clinton. Regardless of party affiliation, ideology and station in the judicial hierarchy, 
        the judges who were confronted by this case agreed that while the policy that 
        brought it about was a "foolish" one, there was no attendant 
        unconstitutionality surrounding the case. And as for the "foolishness" 
        of the policy in question, that is best handled by legislators suited and empowered 
        to make policy, not by judges whose function is to interpret and apply the law.

There should -- and no doubt will -- be a robust debate concerning the nomination of Judge Roberts to the Supreme Court. Such debates are, by nature, immensely complicated and involved. They need not be more complicated and involved as a result of misinformation that is wrongly accepted as fact. Everyone is entitled to their own opinions regarding the fitness of Judge Roberts to serve as a Justice on the United States Supreme Court. But they are not entitled to their own facts.


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