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.
