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Saturday, July 23, 2005

Dubya should use the Roberts nomination to end "Estradification" forever

Todd Zywicki has an interesting post up over at The Volokh Conspiracy on

what some Republicans are calling "Estradification" — requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the Solicitor General office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) ....

Prof. Zywicki notes that he hadn't "found any legal commentators who think that requesting these sorts of documents is appropriate," and that "[d]uring the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it." [Edit: Actually, the letter was written by former Clinton SG Seth Waxman on behalf of every living ex-SG as of the date of the letter in 2002, from both political parties, going back to JFK's SG Archibald Cox; and I'm quite sure the only additional ex-SG as of today, Ted Olsen, would concur as well.] Now, perhaps Prof. Zywicki was trolling for Schumerites, ladling out some chum when he wrote, "my impression is this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there." But sure enough, he's hooked a few in his comments, where variations of Sen. Chuck Schumer's "He's got to fill out his application fully to get the job!" meme are being asserted with apparently straight faces.

I reprint here a slightly edited version of the comment that I left on Prof. Zywicki's post, followed by a closing recommendation to our President and the Senate Republican leadership:


John G. Roberts, Jr. has argued dozens of cases before the Supreme Court — performing under the brightest public spotlight a lawyer can ever have shined upon him. He's written, or been involved in the writing of, hundreds of briefs that are available to the public. His academic and employment records are extraordinary and known to all. The FBI has thoroughly investigated him before and will do so again; these investigations include interviewing hundreds of people he's interacted with, and if there are any red flags found, the Senate will have the benefit of knowing about them. As a lawyer and a judge, John Roberts has interacted with hundreds of professionals, including prominent Democrats, who have had a thorough opportunity to get to know his capacities and his character, and who have a sound basis to share with the Senate their considered opinions about his fitness. In sum, there is a more than adequate basis to evaluate his fitness for the Supreme Court bench without having to start trampling fundamental principles of justice — and the attorney-client privilege is certainly one of those, even before you add in the constitutionally important dimension of federal separation of powers.

Shredding these privileges would hurt the public. Effectively disqualifying the most public-service-minded lawyers from nomination to the federal bench, on penalty of having to waive or see trampled the  privileges associated with their advice and work product, would drain a huge fraction from the pool of potential nominees, including many of the very best and most qualified.

Historically, nominees to the Supreme Court, other federal courts, and many other positions requiring Senate consent — including many lawyers who've practiced for the government — have been confirmed or rejected on the basis of a tiny fraction of the evidence that this Senate will have about Judge Roberts. The Presidents who've nominated those lawyers have never, ever been required to produce privileged documents in whose creation these nominees have been involved. Was the Senate ignoring its manifest duties in all those hundreds and hundreds of confirmations over the decades since the founding of the Republic? Or is Estradification a contrived excuse for a partisan witch hunt?

Liberal special interest groups insist that they want to ensure that Judge Roberts will be sufficiently committed to protecting rights; yet to show that, they insist that the President who nominates him forfeit the rights of the Executive Branch. Rights for thee and not for me? Who's not respecting fundamental rights here?

It's hugely amusing to me that many of the same people who'd eagerly abrogate attorney-client and executive privileges here think reporters ought to have an absolute privilege they can use to shield law-breakers. Perhaps Judge Roberts should just leak his privileged documents to Judith Miller, huh?

I can think of absolutely no better provocation for the Republican leadership in the Senate to employ the "nuclear option" than a Democratic filibuster based on such a transparently bogus ground. I believe that the American public does have an adequate understanding of attorney-client privilege to appreciate just how fundamentally wrong this "Estradification" has been and would be. The Dems would lose big not just on the Senate vote count, but in the eyes of the public. Surely the Senate Democratic leadership is not that stupid, but if they are, I'd say, "Bring it on!"


My closing taunt in my comment on Prof. Zywicki's post was not just rhetorical. Perhaps it would be premature, but I wish that Dubya would re-nominate Miguel Estrada to the DC Circuit to fill the seat that Judge Roberts may leave open. Mr. Estrada probably doesn't want the headache, and might again withdraw from consideration. Certainly he's had more than his fair share of unjustified grief already. But it would be a good way of making the point — in a headlines-grabbing and -holding manner, with as much possible public attention as can be generated — that the federal bench has already been deprived of one damned good nominee for the most sorry, contemptible, and indefensible of reasons.

The Administration and the Republican leadership ought to simultaneously announce that they're not going to crater on the Dems' demands made in connection with Judge Roberts' nomination, and that they're absolutely prepared to use the "nuclear option" to break up any filibuster purportedly waged on account of their refusal to waive attorney-client, work product, and executive privileges.

"Estradafication" ought never, ever happen again; a precedent against it should be clearly set; and the Roberts nomination strikes me as a very good one to do it in.

This is a winning issue for Dubya because the American people are not as stupid as Sen. Schumer apparently thinks they are. And now — while the Roberts nomination is still in its honeymoon, while the Dems are still flailing around, and before their special interest groups have worked up a full lather with the inevitable cooperation of the MSM — would be exactly the time for Dubya & Co. to take the offensive on it. Frankly, it's a fight that needs to be picked, and now's the time.


UPDATE (Sun Jul 24 @ 4:45am): Duncan Currie also writes about this topic in the online version of the Weekly Standard. Reading his article, I have three reactions: First, it's a serious mistake for Republicans to draw comparisons between the Dems' present demands for documents relating to Judge Roberts and Dems' previous demands for documents pertaining (arguably) to the Bolton nomination. The situations are not comparable, the arguments as to the documents' purported relevance is completely different, the precedents are different, and the privileges being asserted aren't at all the same. The comparison should be to Estrada, period. Second, Republicans should stress than any of three separate legal privileges — attorney-client, attorney work product, and executive privileges — would block production of these documents. But after making that point briefly, the main focus should be on attorney-client privilege. People understand that, at least on the most basic level. Executive privilege is poorly understood by the public, and probably half of the lawyers in the country couldn't tell you the difference between attorney-client and attorney work product privileges. Third, don't dribble out some documents and try to cut compromise deals with Kennedy/Kerry/Schumer/Leahy on this. Take the offensive; tell them on national TV: "Not only 'no,' but hell no, never, period, and you should be ashamed for even asking! And for our next witness to explain why, we call Seth Waxman, Solicitor General from the Clinton Administration."

Posted by Beldar at 06:09 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


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(1) RiverRat made the following comment | Jul 23, 2005 8:32:37 PM | Permalink


Unfortunately too many Americans are that uninformed. It would make sense to communicate a simple analogy for such demands for privileged info to the American people in the form of a few of simple questions.

Do you want your attorney to tell the cops that you told him you were guilty?

Do you want your wife to tell the neighbors that you're 6 months behind in your bills?

Do you want your mom to tell your friends that she caught you masturbating in the bathroom when you were 13?

I'm sure the readership here can reduce high-falutin' lawyer-speak to "don't rat on me" or to "la idioma de la calle!"

(2) Beldar made the following comment | Jul 23, 2005 9:21:49 PM | Permalink

In twenty-five years of practice, I've never yet met a client who didn't already have at least a rudimentary understanding of the concept that what you tell your lawyer is secret and he can't be made to spill it. And this is that simple.

(3) ed made the following comment | Jul 24, 2005 1:54:40 AM | Permalink


You mean like that whole "let's reform the use of filibusters on judicial nominations" that conservatives have been waiting for? For how many years now?

Sorry Beldar but I don't have any faith whatsoever in the GOP or this administration when it comes to judges. For one thing I'd like to know exactly why reforming judicial filibusters was put off until a Supreme resigned, when everyone has been expecting a Supreme to resign for the past 5 years.

From the fact that Clement was #2, it's obvious to me that Bush wanted an excuse to not appoint a staunch conservative.

This is just another betrayal by the GOP. This is just another indication that the GOP likes to treat conservatives like crap.

When Roberts shows his true colors I'm going to be laughing my ass off. Because I know my fellow conservatives will be absolutely incandescent with rage and the GOP will finally get it's ass kicked.

(4) craig mclaughlin made the following comment | Jul 24, 2005 3:12:36 PM | Permalink


This observation is not on point to this post, but if you’ll indulge me: One of the memes that has emerged and morphed into conventional wisdom about John Roberts is this notion that he is/was a “stealth” nominee. I know that you (Beldar) have done your part to rebut this, but I submit we need to do more. This week on Washington Week in Review, Fox News Sunday, and other programs of that ilk, I’ve heard reporters and pundits say that Judge Roberts must have been preparing his entire life for this nomination. His ingenious strategy: to remain silent about his ideas lest they prove too radical.

One of the reasons I largely stopped listening to, must less relying upon, the MSM for news coverage is because of the tendency of so many reporters to combine breathtaking ignorance with overweening arrogance. Either trait alone is bad enough, but in combination they are lethal. Lethal to things like facts, balance, and objectivity. To pick on Juan Williams, for example, it never seems to occur to Mr. Williams that just because he doesn’t know anything about John Roberts it does not mean that no one else does. The blogoshere is not immune from this either, Stephen Green--a blogger I otherwise trust-- titled a post, Judge Roberts: International Man of Mystery. An odd way to describe an D.C. Appeals Court Judge and an ex-Deputy Assistant Solicitor General, whose name has been on every Supreme Court short list I‘ve seen for a year or more. I submit to Mr. Green that if he finds John Roberts to be a mystery man its his own damn fault.

Actually the blogoshere generates more its fair share of this, mainly from blogging law professors who can’t understand why John Roberts hasn’t written law review articles or given speeches clearly enunciating his “Judicial Philosophy.” As you’ve written, it’s a pretty easy concept to grasp if you consider the ethics of advocacy-- and once you move past the egotistical notion that not every decision taken is taken to make the pundits’ job easier. Law professors write law review articles and articulate grand legal theories, ala Karl Llewellyn (who won an Iron Cross in WWI-- too bad he wasn’t nominated to the court in the 1940s, wouldn‘t that have been an interesting confirmation hearing?), and Randy Barnett. Practicing attorneys have different obligations, ethical and otherwise. ( there is the time element: law professors work fewer hours than most practicing lawyers and thus have more time to indulge in pursuits of ego like developing grand legal theories and then trying to convince others that they are, in fact, Grand.

Finally, I agree with you completely about the document/ privilege issue.


(5) Aakash made the following comment | Jul 24, 2005 5:06:48 PM | Permalink

Though I wouldn't agree with all of his points and wording, I'm more on "ed's" side on this... We need to be much more discriminating, when it comes to federal judicial nominations, than we have been.

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