Patterico's Pontifications


Bogus Document Controversy Begins

Filed under: Dog Trainer,Judiciary — Patterico @ 6:10 pm

The L.A. Times has published on its web site a story about the White House’s refusal to release privileged documents relating to John Roberts’s time as a Deputy U.S. Solicitor General. The article sets the tone with this paragraph:

The White House today released thousands of pages of documents on Supreme Court nominee John G. Roberts Jr. that nobody on Capitol Hill requested, but declared off limits all materials from the period in Roberts’s government career that would likely be the most revealing about his political views.

The story outrageously portrays this bogus document issue as genuine, by completely ignoring the massive weight of evidence to the contrary. For example, the editors allow this statement by Sen. Ted Kennedy to go completely unchallenged in the article:

“In my 42 years on the Judiciary Committee, we have received many internal Justice Department documents at least as sensitive as these, even for confirmation proceedings that don’t come close to the importance of a Supreme Court appointment,” said Sen. Edward Kennedy (D-Mass.). “There is no privilege, there is no rule, there is no logic that would bar us from getting these documents.”

Disingenuous doesn’t even begin to describe this.

Let’s start with the portion of Kennedy’s statement that holds that there is “no privilege” that would bar the Senate from obtaining memos by a Deputy Solicitor General. Recently, my friend William Dyer concisely demolished an identical claim by Sen. Pat Leahy as “a preposterous and incorrect statement of the law.” Mr. Dyer has the case citations to back up his statement. Mr. Dyer’s total refutation of Leahy’s comment is a conclusive rebuttal to Sen. Kennedy’s identical claim that there is “no privilege” or “rule” that bars the release of internal memos to the Solicitor General.

Equally ridiculous is Sen. Kennedy’s claim that there is “no logic” to the claim that such memos should remain confidential. The reasons to keep such memos confidential were set forth in a February 12, 2003 letter from Alberto Gonzales to Senators Daschle (remember him?) and Leahy, regarding the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. (To read the letter, go here and scroll down, or search for “February 12, 2003” — the letter is fairly far down the page.) Gonzales’s letter explained:

You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: “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 also would be borne by Congress itself. . . . Although we profoundly respect the Senate’s duty to evaluate Mr. Estrada’s fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process.

Gonzales made it clear that a wholesale disclosure of internal Justice Department memoranda would be wholly unprecedented:

The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada’s nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice’s review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by the Department. In fact, the Department’s review disclosed that the Senate did not even request such materials for a single one of these 67 nominees.

Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph.

Today’s L.A. Times story suggests that a different precedent was set during the confirmation hearings for Robert Bork:

Democrats noted that the Reagan administration provided a number of internal Justice Department documents during nomination proceedings for Robert Bork in 1987, including material from the time he served in the solicitor general’s office.

But Gonzales’s letter regarding Estrada addressed — and convincingly rejected — that exact argument:

The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork’s nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork’s involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received.

None of this information is included in the article. Readers are left with the impression that Democrats are asking for nothing more today than was already provided in the confirmation hearings for Judge Bork. As Gonzales’s letter makes clear, this impression is misleading in the extreme.

With respect to Miguel Estrada, Gonzales suggested numerous alternatives to reviewing confidential internal memoranda, such as: reviewing written briefs and oral arguments; interviewing Estrada’s former supervisors; interviewing those who served alongside Estrada; and examining Estrada’s written performance reviews.

As far as I know, similar avenues are available to Senators who wish to examine John Roberts’s record.

Not that the L.A. Times mentions that, either.

I am assuming that today’s L.A. Times story on this issue is just a hasty first draft. Surely the version that runs in tomorrow’s paper will present some of the arguments I just went through.

Am I being too naive?

I guess we’ll see.

UPDATE: Mr. Dyer has more here on the documents issue generally. He is proving to be a valuable voice in this confirmation fight, as he was in the 2004 presidential election. It’s good to see him actively blogging again.

UPDATE x2: See the UPDATE to this post for a surprising about-face by Walter Dellinger, and a refutation of his arguments.

Hillary the “Centrist”

Filed under: Dog Trainer — Patterico @ 3:00 pm

Ronald Brownstein’s front-page article about Hillary Clinton in this morning’s Los Angeles Times is titled Clinton’s New Job: Defining the Center. I got your definition right here, Hillary: anything to the right of you.

It’s notable how unquestioningly the paper accepts the idea that Hillary is now truly a centrist. In a statement that could have been written by one of her campaign staff, the paper says:

The appointment solidified the identification of Clinton — once considered a champion of the party’s left — with the centrist movement that helped propel her husband to the White House in 1992.

Yup. She may once have been considered a champion of the left, but her identification as a centrist is now solidified.

Thought experiment: can you imagine the L.A. Times being so uncritical of a Republican candidate’s efforts to portray himself as a centrist? For example, back in 2000, when George W. Bush ran for office as a center-right candidate, did Ron Brownstein praise Bush as someone whose identification as a centrist had been “solidified”?

Time to check the archives. Turns out that in a July 31, 2000 news analysis about Presidential candidate George W. Bush (no Web link available), Brownstein acknowledged some centrist positions Bush had taken — but hastened to note that his fundamental positions were Republican to the core:

Compared with the antigovernment fervor of the GOP Congress in 1995 and 1996, Bush constitutes a clear step toward the center. He explicitly separated himself from the revolutionary generation of conservatives last year when he derided “the destructive mind-set . . . that if government would only get out of our way, all of our problems would be solved.” He is proposing an enhanced and creative federal role in leveraging education reform and modest but measurable federal initiatives to help working-poor families buy homes, purchase health insurance and accumulate financial assets. He’s also notably moderated the GOP tone on controversies with a racial tinge–such as affirmative action and immigration.

But on the issues of greatest concern to the Republican base, Bush’s views are entirely in the conservative mainstream. In his support for tax cuts, missile defense, school vouchers and partial privatization of Social Security–and his opposition to legal abortion and most gun control–Bush reaffirms rather than redirects the GOP consensus. Nothing in Bush’s agenda challenges his party’s dominant ideology as fundamentally as Clinton did with his support for welfare reform or later the balanced budget and paying off the national debt. As leading conservative strategist Grover Norquist recently said of Bush: “On everybody’s central issue within the Reagan coalition, he’s there.”

So when Bush was the candidate, Brownstein wasn’t content to label Bush as a centrist based on a left-leaning initiative or two. Rather, Brownstein properly took a hard look at Bush’s core principles and asked whether they diverged from those of his party. While Brownstein considered Bush a step “toward the center,” Brownstein’s ultimate conclusion was that Bush fundamentally agreed with his party on the central issues important to Republicans.

Applying the same standard, Hillary must really be taking on her party in some fundamental way for Brownstein to fawn over her allegedly centrist credentials as “solidified.” I eagerly read the article to see where Hillary has “challeng[ed her] party’s dominant ideology” in a fundamental way. But the article offers only one specific example: her “calling for increased border security.”

Wow. She really is taking on her party! She may once have been seen as a champion of the left, but with a call for increased border security, her position as a centrist is solidified. I needn’t worry any longer that Hillary will try to nationalize health care, raise taxes through the roof, scrap missile defense, or push a radical pro-abortion agenda in the courts. I can rest easy, knowing that Ronald Brownstein has declared Hillary’s leftist leanings a thing of the past.

That certainly puts me at ease. How about you?

UPDATE: Mickey Kaus calls it the “Cheap Date Syndrome”:

And if reporters are willing to give Hillary credit for being “downright conservative” just because she uses the phrase “old fashioned values”–well, reporters are cheap dates!

I’d always thought this Cheap Date Syndrome helped Hillary mainly with the Left, which loves Hillary so much it could conceivably be bought off with a bit of Bush-bashing that covers a dramatic Hillary shift to the right. But it’s now also clear that her shift to the right doesn’t have to be that dramatic, because the equally Cheap Date press is ready to interpret even the subtlest, most insubstantial shading as part of Hillary’s New Moderation. She can get credit for centrism without having to actually take too many positions that the left would disagree with (and hold against any another politician).

Ron Brownstein is a cheap date.

Yet Another Mainstream Media Distortion That Just Happens to Disfavor John Roberts

Filed under: Judiciary,Media Bias — Patterico @ 2:11 pm

Yesterday I told you about a front-page article in the Washington Post about John Roberts’s listing on the “steering committee” of the Federalist Society. One of the people quoted in the story claims that his quote was used in a misleading manner.

The article states:

[M. Edward] Whelan, who has been a member of the Federalist Society but said he had no recollection of his own membership on the steering committee, said the society is tolerant of those who come to its meetings or serve on committees without paying dues.

“John Roberts probably realized pretty quickly he could take part in activities he wanted to” without being current on his dues, Whelan said.

These may seem like fine distinctions, but Roberts has insisted on them.

In a post at the Bench Memos blog, Whelan states:

The article quotes me as speculating that Roberts “probably realized pretty quickly he could take part in [Federalist Society] activities” without being a dues-paying member. For the record, I would like to clarify that I have absolutely no basis for any insights on this matter. The point I made to the reporter (in a conversation that I understood to be “on background”) was that the Federalist Society typically has a two-tier pricing system for its events — a lower price for members and a slightly higher price for non-members — and that speakers at its events are, as I understand it, typically admitted free. If I made the speculative comment that the article attributes to me, it was in a context that made clear to the reporter that I had no knowledge about anything related to Roberts’s membership or non-membership. It is misleading that the quote is used in a manner that might suggest otherwise.

Just, you know, for the record.

Michael Kinsley Leaving L.A. Times (UPDATE: Only In His Position As Opinion Editor)

Filed under: Dog Trainer — Patterico @ 7:52 am

As L.A. Observed says: “That was fast.”

The other day, I said:

[Outgoing editor John] Carroll supported Kinsley 100%, by all reports. Does [new editor Dean] Baquet? Again, I don’t know.

I think we know the answer now.

UPDATE: If you actually read the L.A. Observed post, as opposed to just glancing at it as I did earlier, you’ll see that Kinsley is leaving his current position, but is staying with the paper in some undefined capacity.

UPDATE x2: I can only hope that Kinsley’s innovations don’t go the way of his editorial position.

UPDATE x3: More thoughts here.

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