BeldarBlog

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:

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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!"

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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.

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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."

Dalia Lithwick's response, and Beldar's reply, re Judge Roberts' Hedgepeth french fry case

Slate senior editor Dahlia Lithwick has responded by email to my post from yesterday in which I challenged her assertion that Supreme Court nominee John G. Roberts' opinion in the Hedgepeth shows that "he seemingly finds arresting [twelve year old girls] for French-fry possession to be a cornerstone in good parent-child relations." I wrote, and continue to believe, that in so stating, Ms. Lithwick was telling a deliberate lie about Judge Roberts' views, of the same sort that anti-Roberts interest groups are peddling as a talking-point about this case; that contrary to her statement, in context Judge Roberts' opinion clearly shows that he thought the DC Metro's policies to be foolish and unwise; and that nothing in the opinion could support the contrary conclusion asserted by Ms. Lithwick:

My challenge is for you to either substantiate your statement with even a single paragraph from the opinion itself which even "seemingly" supports the view that Judge Roberts saw anything "good" (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that you can't.

Reprinted in full here with her permission is Ms. Lithwick's email reply from this morning:

Dear Mr. Dyer

Thank you for your thoughtful note.

It would seem you don't agree with my characterization of Judge Roberts' opinion in Hedgepeth. As you are aware, having read the opinion, Roberts concludes with the line, "that [no-citation] policy is rationally related to the legitimate governmental interest in ensuring parents are notified of their child's trangressions."

As you may surmise, I do not agree that there is even a rational relationship between the two. I find the notion that "detention until the parent is notified and retrieves the child" is a rational way to "correct straying youth" to be quite preposterous and wished to suggest as much to readers in a humorous fashion.

Your note suggests that you do, in fact, understand that I made this point through the use of a literary device called "hyperbole" or "exaggeration."

You may not agree that the "snark, satire, sarcasm, exaggeration" employed therein are humorous. And you may not agree with my characterization of Roberts' legitimate governmental interest analysis. Certainly in future I will try much harder to rise to all objectively measured international levels of humorousness. But I do thank you for keeping me informed as to when I have performed in a substandard fashion.

Congratulations on your terrific blog.

Dahlia

I cannot fault Ms. Lithwick for the graciousness or timeliness of her reply, and indeed I thank and compliment her for both. But I respectfully submit that she's ducked my challenge, failed to support her original statement, and instead tried to change the subject to a legal point on which she's also badly wrong.

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Let's be honest, please, and all agree on the obvious: The anti-Roberts interests groups want to use the facts of this case to paint Judge Roberts as an insensitive, callous ogre. They want to impute to him an attitude that most Americans will find repulsive. Thus, their short-form talking points — like Ms. Lithwick's comment yesterday — certainly don't discuss any constitutional law. Compare:

Yesterday:	Today:
[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).	I find the notion that "detention until the parent is notified and retrieves the child" is a rational way to "correct straying youth" to be quite preposterous and wished to suggest as much to readers in a humorous fashion.

The first statement is an imputation of a specific, ugly attitude to Judge Roberts — an attack on his character. The second is an outline of a legal argument — one that's wrong, but that at least makes some reference to the relevant legal standard (here, "rational relationship" review for constitutionality). The first statement is indeed hyperbolic and exaggerated, and perhaps funny. But it isn't a way of making the same point that's in the second statement.

"[C]ornerstone in good parent-child relations" — that's a phrase that refers to personal values. "Cornerstone" here means something essential, upon which other things are (metaphorically) built. "Good" presumably is a synonym here for "wise" and "proper" and "appropriate" and "admirable." Even stripping away the sarcasm and hyperbole, Ms. Lithwick asserts as a factual matter that Judge Roberts affirmatively endorsed the DC Metro's zero-tolerance, no-citation policy — that he not only endorsed it as being a good, wise, proper, appropriate, and admirable way for the government to promote parent-child relations, but also as being an essential basis for good parent-child relations. That's telling a lie about what Judge Roberts actually said — it's the opposite of what Judge Roberts actually said about the wisdom of the policy — and Ms. Lithwick's dressing that lie up in snark and hyperbole doesn't suddenly change that lie into truth. Nor does her advancing a legal argument today change her personal attack from yesterday into a legal argument.

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On to the law, then. Every American lawyer has had drilled into him/her that the Supreme Court's "rational relationship test" is by far the easiest test to pass in all of constitutional law. A search I just ran on the collected opinions of the U.S. Supreme Court shows that the phrase "rational relationship" turns up in 122 different cases — almost always in the context of a stupid, unwise law or regulation nevertheless being found constitutional. To qualify, the purported justification for the law or regulation need only find "some footing in the realities of the subject addressed by the legislation," and that can be an unwise, unfair, illogical, unarticulated, speculative, unsupported, overgeneralized, imprecise, illogical, unscientific, unjust, and even preposterous justification:

We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Nor does it authorize "the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." A statute is presumed constitutional, and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "'is not made with mathematical nicety or because in practice it results in some inequality.'" "The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific."

Heller v. Doe, 509 U.S. 312, 319-21 (1993) (citations omitted). I picked that case more or less at random, and partly because it was written by Justice Anthony "sweet mysteries of life" Kennedy; but there are dozens and dozens just like it.

The bottom line is this: When you're mounting the sort of constitutional challenge to a statute or regulation or policy that young Miss Hedgepeth's parents were, unless you can convince the courts that some higher level of scrutiny than "rational relationship" is required, you're almost certainly going to lose. Young Miss Hedgepeth had excellent lawyers for her appeal; they knew this; they spent all their efforts trying to avoid "rational relationship" review, because they knew that under that standard, they'd definitely lose. But they failed, so they did lose.

At least what Ms. Lithwick came up with today as a criticism of Judge Roberts is a legal argument, rather than the sort of wholly unjustified ad hominem attack she made on him yesterday. But it would get an F on any con law exam at any law school in the country. Even Larry Tribe would give you an F if you tried to say on one of his exam papers that "preposterous" is enough to negate "rational relationship" under current law; he might agree with Ms. Lithwick that that's what the law ought to become if they appeared together on some cable news show, but I seriously doubt that he has the juevos to ever sign a brief so stating, for if he did, his credibility as a constitutional scholar would evaporate. Not even Justice Kennedy would go so far in making legislation subject to the whims of judges; in fact, I don't think you could get Justices Stevens or Ginsburg to sign on to that, nor would Justices Brennan or Marshall in their day.

Still, I much, much prefer this sort of argument. When you say to the American people, "Judges should be able to overturn laws based on their own personal whims about what's wise and fair, and I oppose Judge Roberts because he disagrees with me on that," then the American people can squint hard at you, tilt their heads to one side, and decide whether to cock their shotguns before escorting you off their premises.\^*/ That's much better than telling a lie — which I continue to believe Ms. Lithwick did yesterday.

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\^*/That's snark, sarcasm, exaggeration, and hyperbole. I no more want to see Ms. Lithwick threatened with a shotgun than I would want to see one of my daughters arrested for eating a french fry.

A challenge to Dahlia Lithwick

From something you wrote today (boldface mine, link in original):

[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).

Snark, satire, sarcasm, exaggeration — these all have their places, and from time to time I'm a willing practitioner of each. As rhetorical devices, they're effective and defensible only if they are grounded in at least a grain of arguable factual truth.

Regular readers of my blog will know that I don't use the term "liar" lightly. But I assert that you, ma'am, have told an outright lie in the parenthetical quoted above, and I call you on it.

The LA Times article that you link is a partial reprint of what Judge Roberts wrote in the Hedgepeth case. The text there not only fails to support your assertion, it entirely refutes it. And although (as my friend Patterico has demonstrated) the LAT has elsewhere engaged in the same misrepresentation that you did, one could at least defend the LAT's writers and editors as being merely stupid instead of dishonest. Perhaps they never actually read the opinion, or lacked the training to understand it.

But you, Ms. Lithwick — a senior Slate editor, a graduate of Yale University and Stanford Law School who had incontrovertible access to the facts that you've misrepresented — cannot plead stupidity. I therefore say that you, ma'am, are just a liar.

My challenge is for you to either substantiate your statement with even a single paragraph from the opinion itself which even "seemingly" supports the view that Judge Roberts saw anything "good" (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that you can't. If all you can point to is the raw outcome of the case — in which the district judge, Judge Roberts, and two other DC Circuit judges all refused to find a constitutional violation, yet all expressly condemned the local law and policies as "foolish" or worse — then you surely must explain why that result is a better indicator of Judge Roberts' views than everything else he wrote in the opinion that is absolutely contrary to the views you impute to him.

I expect that you'll neither defend yourself nor admit that you were lying, and that instead you'll simply ignore this. I'll email you and your publication to try to bring it to your attention, but my blog is a small one (barely 1.5 million "page views" since 3/10/04), and although you've linked to it in the past, this time you'll probably just pretend that I don't exist — that's no harder than pretending Judge Roberts has said the opposite of what he actually said, is it? Still, my comments section is open, ma'am, and you certainly have plenty of bandwidth of your own to defend yourself. Can you?

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UPDATE (Fri Jul 22 @ 1:20pm): Be sure to read Ms. Lithwick's emailed response, and my reply, in this new post!

A response to Randy Barnett's essay on the Roberts nomination

I like Randy Barnett, the Boston University law professor who blogs on The Volokh Conspiracy, and I'm not accusing him of being out of touch in general with the real world. But I do think this well-written and -argued essay about the John G. Roberts nomination betrays some of the shortened perspective that's most often found in the tall ivory towers (emphasis his throughout):

What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy....

Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted — taking a position, and defending it against all comers — is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views.

This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

I understand Prof. Barnett's frustration, but the only cure for it would seem to be limiting Supreme Court nominations to "other scholars" — i.e., to law professors. He acknowledges that this cure would have substantial political costs — that if, for example, Dubya had nominated former professor/now Circuit Judge Michael McConnell, the confirmation fight would probably have been made tougher. But I fear that long after the confirmation battles are over, this cure would be worse than the disease.

I have enormous regard for those who write, lecture, and blog about the law, and I've done some of those things myself. I certainly agree that "taking a position" and defending it as part of that writing, lecturing, or blogging is hard. But with due respect, I submit that doing law is substantially harder, and ultimately more meaningful, than just writing, lecturing, and blogging about it. To be an effective counselor for one's clients, a practicing lawyer has to not only be able to understand and articulate his own principles, but to understand and articulate other sets of principles as well, including (but not limited to) his opponent's in that particular case. As an advocate, he then may have the further duty and considerable challenge of "defend[ing] against all comers" a set of principles that aren't even his own, but that his client and/or the circumstances have dictated.

Prof. Barnett acknowledges that "standing up to judicial questioning in oral argument" is a different "kind" of "hard" than, say, the ponderous debates among law professors arguing with each other through law review articles; and academic debates can indeed have consequences and rewards (think tenure) that motivate their participants. But I doubt that Prof. Barnett intends the offense to us practitioners implied by his suggestion that real world legal fights count less, or are performed with less skill and vigor, than academic world legal fights. I actually suspect that the contrary is more often true, especially when one's in the particular sort of legal trenches in which John G. Roberts has been plying his trade. "Trial by ordeal" in the ivory towers? How about "trial by ordeal" in the courtroom? Which is more relevant to judging?

Quite a few practitioners find their real world legal fights to be sufficiently taxing that they're not left with much energy or inclination to make speeches, join advocacy groups, testify before Congress, blog, etc. Even if they are, however, sometimes discretion, exercised through "effort and discipline," may indeed forbid them from taking — particularly for no reason other than the joy of abstract debate — high-risk, high-profile positions that may jeopardize their clients' interests. In fact, one might aptly describe the disciplined exercise of such caution as "being judicious," which would seem to be a plus for a judicial nominee rather than a minus.

"[P]ublic disclosure and scrutiny by other scholars" — well, let's broaden that last word to include not just scholars, but anyone interested in the law and legal system — does indeed make it easier for us outsiders to try to draw conclusions as to what a nominee's core principles and philosophy are. And thus it's easier for outsiders to assess not only academics like Prof./Judge McConnell, but longer tenured judges. But it's a serious mistake to conclude from the fact that we in the public can't easily see a nominee's core principles and philosophy that they don't exist, or that they're underdeveloped or random, or that they're contrary to those which Dubya has promised during both of his presidential campaigns that he'd seek in his judicial nominees. As I've argued at more length last night, Dubya and his staff have had the opportunity that the rest of us lack to assess, through his privileged writings and the views of trusted superiors and co-workers, John G. Roberts' demonstration of his principles and philosophy in action — under more than hypothetical stress, with consequences far greater than tenure, and on exactly the kind of issues that are brought before the United States Supreme Court (because that's exactly where he's been practicing). Surely Prof. Barnett doesn't mean to suggest that a long-time client has a poorer opportunity to assess his long-time lawyer than one academic has to assess another, does he?

I'm glad that Judge Roberts' career includes a year clerking for Judge Friendly in New York for the commerce-heavy Second Circuit, far from both the Rivers James and Potomac. I'm glad that in addition to helping the Executive Branch formulate its legal policy and defending it in the courts, he's also had real-world private clients who have to make payroll and justifiably bitch about their legal fees. The guys over at Power Line said on Hewitt's radio show last night that they have good grounds to believe that Judge Roberts reads blogs (including theirs, and if so, probably also the VC). So am I much troubled that he doesn't also write one, or that he's never been a law professor or an interest group speechifier? Nuh-uh — that doesn't trouble me for purposes either of assessing his suitability as a nominee or predicting his likely performance once he's confirmed as a Justice.

Do I wish that I could personally sit down with Ken Starr and discuss in detail the "I saids" and "he saids" between him and John Roberts that went into formulation of the Office of the Solicitor General's many recommendations and then final positions on complex questions of law before the Supreme Court? Well, yeah, sorta; but I can't, and neither can Prof. Barnett or the senators. Do I wish I could ask Chief Justice Rehnquist for his take on what kind of legal reasoning comes naturally to his ex-clerk John Roberts? Yes, definitely; but I can't, and neither can Prof. Barnett or the senators. Because he's been a practitioner instead of a scholar, those aspects of John Roberts' legal career are shielded from us. But they weren't shielded from Dubya, and it would be a horrible mistake to disqualify from SCOTUS consideration everyone who's actually done law instead of just talking and writing about it.

Why I'm not worried that Judge John G. Roberts will become "another Souter"

Conventional wisdom is that all other things being equal, the single best predictor for how a SCOTUS nominee will behave as a Justice is that nominee's written opinions as an appellate judge on a lower court. Even then, because those lower courts lack the full range of powers that SCOTUS has, there are limits to how confidently such predictions can be made. But many conservatives had hoped that Dubya would pick a nominee (e.g., the Fifth Circuit's Edith Jones) with a long, deep record of writing on controversial issues from, for example, a seat on one of the federal courts of appeals.

John G. Roberts doesn't have that kind of long, deep written record as a judge on the DC Circuit — and that may leave some conservatives uncomfortable about the possibility that he'll become "another Souter." But for reasons that, oddly enough, are closely related to the attacks that Judge Roberts' opponents are certain to make, I think that conservatives ought not be concerned about this.

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The flip side of Judge Roberts having a thin public record as a judge, of course, is that there's less of a paper trail for Judge Roberts' opponents to pick through and distort; indeed, this was the "stealth candidate" rationale advanced by the Bush-41 Administration for the Souter nomination that, in hindsight, backfired so badly. Lacking a long paper trail of prior judicial opinions, Judge Roberts' opponents will instantly flip to alternative strategies.

First, they may decry the nominee's "lack of judicial experience." This is singularly unpersuasive with Judge Roberts, though, because his two years on the DC Circuit are nontrivial, he'd have been there since 1993 had not Bush-41 lost, and his other academic and career credentials are so varied in type but extraordinary in quality. Indeed, if his only credential were the extraordinary number of cases he's personally argued and won in the Supreme Court as an advocate, that alone would probably be enough to qualify him for a seat on that bench! So this strategy is unlikely to be very appealing or effective.

A second alternative strategy is available to the Dems precisely because Judge Roberts has spent much of his career as a public servant — first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying. And — again as with Estrada — no matter what he says during his confirmation hearings, they'll contend that Judge Roberts has been "insufficiently candid" based on his refusal to let them put words into his mouth, or to answer "stopped beating your wife?" questions, or to pre-commit on or address the merits of "pending or impending" cases that a judge may not ethically discuss.

Third, Judge Roberts' opponents will try to tag him with public positions he's taken on behalf of clients, either governmental or private-party, before he became a judge. As a high-profile and active appellate advocate, John Roberts has, of course, advanced many arguments and taken many positions on behalf of the Reagan and Bush-41 Administrations and on behalf of Hogan & Hartson's private clients in what have been, by definition, high-stakes and hugely controversial cases. His name is on, and he's been personally involved in writing, a great many briefs, and he's also orally argued many of those cases. Opponents of his nomination will therefore impute arguments and positions to him, personally and in full, whenever it fits their goal of portraying him as "extremist." (Indeed, they've already started). This may be a somewhat effective strategy, but it's extremely cynical and unfair, and it will ultimately fail because it ignores what even the general public understands to be the most basic truth of lawyering: Whenever John Roberts has appeared in courts as an advocate, he's been expressing views as an agent on behalf of his principals, not on his own behalf. That is his and every advocate's fundamental duty — both when the advocate personally agrees with his principal and when the advocate personally disagrees (and has privately argued against that argument or position). The fact of the matter is that you can tell something about how clever and competent a lawyer is by observing his oral and written advocacy, but you can't really tell what's behind the mask, what's inside the advocate's heart. This might actually end up briefly troubling conservatives: Just as liberals can't conclusively assert that everything Principal Deputy Solicitor General Roberts wrote and argued as a public advocate for the Bush-41 Administration reflects his personal beliefs, neither can conservatives necessarily rely upon that either!

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But worry not, my conservative friends, because this actually gets me back around to why I'm not terribly worried that Judge Roberts will turn out to be "another Souter."

Through documents and through first-hand opinions of solid and reliable conservatives who've worked closely with John G. Roberts — in his capacity as a private counselor, and not just a public advocate — Dubya does have full access to what Judge Roberts has thought and said when he's been at his most candid, under pressure and entirely outside the public spotlight.

Hugh Hewitt pointed out on his radio show tonight, entirely correctly, that when John Roberts was a lawyer for the Reagan Administration, that Administration was under legal siege: times were tough, stakes were high, and wise, private legal judgments were desperately needed. Seeing from a client's viewpoint how a lawyer functions as a counselor — how he privately answers key questions like "Is this wise? Is this principled? What are the downsides? What do we really think, public façade aside?" — is extremely revealing. Quite arguably, this sort of information can tell one even more about how a nominee will perform in the future than what he's written — always for publication and usually after compromise with others on the bench — as a judge on a lower appellate court.

Thus, through people like former Solicitor General Ken Starr (and, perhaps, Chief Justice Rehnquist?) with whom John Roberts has worked very closely, and through privileged documents that Judge Roberts must have written himself while a government lawyer, Dubya and his staff certainly know vastly more about Judge Roberts' character and core beliefs than, for example, Poppy Bush ever could have known about David Souter or than the Gipper ever could have known about Sandra Day O'Connor and Anthony Kennedy. Instead, Dubya and his staff have the same kind of first-hand, pertinent, and highly reliable knowledge about John Roberts that Richard Nixon and his staff had about William Rehnquist. And that worked out pretty well over time, didn't it?

Again, for reasons of precedent and preservation of executive privilege, Dubya won't and can't share those private, confidential documents, nor those private, confidential personal assessments, with you, me, or the Senate. But he has them; they're incredibly meaningful; and we have every reason to believe that Dubya has made very, very good use of them. Don't misunderestimate your president, my conservative friends. Rejoice and have faith!

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[This post has been substantially edited for clarity after a decent night's sleep. — Beldar.]

Judge Roberts can say "I am not empowered to fix this" despite the temptations

Yesterday I wrote (emphasis in original):

[B]y far the single most important quality that the new Justice must have, if Dubya is to keep his campaign promises, is the willingness to write words like these: ... I am not empowered to fix this. That's the essence of what Justice Thomas said [in his dissent in Lawrence v. Texas], and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming.

Last October, here's what new SCOTUS Associate Justice-nominee John G. Roberts wrote in Hedgepeth v. Washington Metropolitan Area Transit Authority, 386 F.3d 1148 (D.C. Cir. 2004) (emphasis mine):

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.

Bingo! This is a very fine example of what I was talking about. If you read the entire opinion, you'll see a tightly constructed, well-written and -reasoned piece of judicial prose that (as such things go) is remarkably unstuffy, and that meticulously follows existing precedents to reach its conclusion. That fits, of course, with Judge Roberts' academic and professional track records, and it's reassuring. But to paraphrase Renée Zellweger's character in Jerry Maguire: He had me at "[n]o one is very happy ...."

(One thing I'll add about Judge Roberts' record that I haven't seen mentioned elsewhere, but that I can confirm as someone who was applying for circuit court judicial clerkships at about the same time Judge Roberts was: clerking for the late Henry J. Friendly of the Second Circuit was considered one of the half-dozen absolute "plum" clerkships in the country, in some ways more impressive than his later clerkship for then-Associate Justice Rehnquist.)

As a blogger, a lawyer, a conservative, a conservative lawyer-blogger, and the father of two french fry-eating girls ages ten and fourteen, I enthusiastically support Judge Roberts' nomination.

And I thank and commend President Bush for a superb choice that does indeed keep the promises he made in both of his presidential campaigns. With respect to those who had their knickers all twisted about whether Dubya would blow this opportunity, I say: "Misunderestimated him again, dintya?"

WaPo on the Fifth Circuit's potential SCOTUS nominees

An interesting and potentially informative news or even feature article could probably be written about the fact that five of the names rumored to be on President Bush's list of potential Supreme Court nominees are judges on the United States Court of Appeals for the Fifth Circuit. But this one in today's WaPo isn't such an article.

Sometimes this article is sloppy, as in its introduction:

It wasn't all that long ago that the U.S. Court of Appeals for the 5th Circuit was on the cutting edge of the civil rights movement, a liberal pocket of scholars aggressively enforcing the Supreme Court's demand for speedy desegregation in the Deep South.

But things have changed mightily in 20 years. Today, the New Orleans-based appellate court is considered among the most conservative in the land — but it is still at the center of politics and history.

Twenty years? Umm, try 40-50 years. This looks like an editing error; later, the article correctly refers to Jack Bass' 1981 book Unlikely Heroes about "a group of four legendary judges [who] dominated the court in the 1950s and '60s, aggressively interpreting the Supreme Court's civil rights rulings to accelerate racial equality in a resistant South."

Sometimes this article is just wrong, as when it says of the recent Miller-El decision that Justice Souter's opinion "said the 5th Circuit decision was a 'dismissive and strained interpretation' of how the Supreme Court had previously ruled" — basically an accusation that the Fifth Circuit was monkeying with the law. What Justice Souter's opinion actually said was (citations omitted, emphasis mine):

The Court of Appeals concluded that Miller-El failed to show by clear and convincing evidence that the state court’s finding of no discrimination was wrong, whether his evidence was viewed collectively or separately. We find this conclusion as unsupportable as the “dismissive and strained interpretation” of his evidence that we disapproved when we decided Miller-El was entitled to a certificate of appealability. It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination.

So Justice Souter actually was disagreeing with a Fifth Circuit panel's reading of the evidence presented by one side in a single case — not with the Fifth Circuit's (or even just that panel's) interpretation of any principle of law. Even then, he acknowledged that "judgment calls" were involved on that evidence. And the tone here is no harsher than in most any Supreme Court reversal of a circuit court opinion; they're pretty much finding something wrong every time they reverse, huh? But hey, the MSM party line was that the Miller-El decision was some kind of deliberate and unusual "rebuking" or "chastising" by the Supreme Court of the Fifth Circuit — a finger-waggling that might turn into a spanking. It's a whole lot easier to find a spotlight-hungry law professor or interest-group spokesman to give you a good speculative quote suggesting that sort of judicial catfight than it is to actually find, umm, you know, the Supreme Court actually saying that it's rebuking the Fifth Circuit for screwing up the law.

Elsewhere, the article is partly right about basic facts, but still badly misleading by omission. It correctly notes that Fifth Circuit Judge Edith Jones would be a controversial nominee in part because of something she wrote in a recent abortion case (ellipsis by WaPo):

Of the five judges mentioned for the Supreme Court, Jones, 56, is considered by lawyers who practice before the 5th Circuit to be the most intellectual, the most abrasive and the most ideological. Although she is a favorite of the Christian right, both Democrats and Republicans question whether Bush would risk the inevitable Senate fight if he nominated her.

In an opinion last year, she criticized the Supreme Court on Roe, writing: "The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy ... is that the facts no longer matter. This is a peculiar outcome for a court so committed to 'life' that it struggles with the particular facts of dozens of death penalty cases each year."

You'd certainly think from reading this WaPo characterization that Judge Jones cast an anti-abortion vote in this case, wouldn't you? But you'd be 100 percent wrong. In fact, as I wrote last month, Judge Jones personally and unilaterally dropped the case from the Fifth Circuit's oral argument calendar — actually taking heat from "Christian right" anti-abortion groups for doing so — and then authored a unanimous panel opinion that rejected an attempt by Norma McCorvey, the original "Jane Roe," to re-open Roe v. Wade. Why, I wonder, could the WaPo find room to quote Judge Jones at length, but then conceal through omission the way she actually voted? And why did WaPo choose to replace with an ellipsis this particular phrase: "which affects over a million women and unborn babies each year"?

Judge Jones' decision to also write a separate concurring opinion criticizing Roe was indeed unusual and highly provocative, but it's by no means all of the story. Arguably, it's not even the most important part of the story, because lots of folks have criticized Roe, but Judge Jones' actual vote in the McCorvey case, as conveyed through her opinion for the panel, is one of the most vivid examples I've ever seen of a judge strictly following binding law with which he or she personally disagrees. And the concurring opinion's final sentence was perhaps the most provocative of all, precisely because it strays outside the subject of abortion into a broader, very blunt criticism of the Supreme Court:

That the Court’s constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.

Now, that would be a perfectly ordinary thing to read in a blog (a fairly wordy one like mine, anyway), or in a law review article, or maybe in a Scalia or Thomas dissent. But it's a genuinely remarkable thing to read in the official collected writings of United States Circuit Judges, a/k/a the Federal Reporter, Third Series, friends and neighbors. It's not quite the equivalent of Edith Jones shouting, in eager anticipation of a hotly contested confirmation hearing, "In yo' face, Chuckie Schumer! And lookout Justice Kennedy, I'm gonna whup up on yo' substantive due process butt!" But yeah, this would be a very rare example of upstream "chastising/rebuking." Now, it could just be the heartfelt statement of one judge's views; and the timing could be a complete coincidence. But it sorta reads like grist for a very aggressive set of talking points for political conservatives whose concerns about the Supreme Court aren't at all limited to abortion, doesn't it? So why did WaPo leave this, and the statistic about "babies," out? I might be wrong, but I think I smell a reporter regurgitating partisan talking points and pre-selected (Dowdified) partial quotes spoon-fed only from the other side here, folks. Well, heck, if you only look at one side's stuff, you miss at least half the drama!

And of course, WaPo continues the bloodthirsty "Texas Death Factory" meme, since that's a convenient and time-tested way to beat up on Dubya, his home state, its judges, and the horses they all rode in on:

Because it covers Texas — which has the highest execution rate in the country — the [Fifth Circuit] sees a lot of death penalty appeals. Most frustrating to foes of the death penalty and to civil rights lawyers is that the court has a record of rarely siding with defendants.

Oh, please. Whether it's in the Fifth Circuit or elsewhere, criminal defendants — either on direct appeals from convictions in the federal court system or in habeas corpus challenges to state-court convictions — always lose most of the time. Their lawyers are frustrated everywhere. But one reason that lawyers challenging death penalty convictions from Texas are particularly frustrated is that the Texas state trial and appellate courts have by now litigated almost every conceivable legal issue that can come up in a death penalty case, and for the most part either the State's positions have been repeatedly sustained by the federal courts or, when the State's positions have been rejected, the local prosecutors have made appropriate adjustments to follow the law. Lots of Fifth Circuit reversals would mean the system is consistently broken at the state trial- and appellate-court level. The one part of the "Death Factory" meme that is partly true is that Texas state-court prosecutors and trial judges have gotten really good at following the law in death penalty cases, and the prosecutors or state AGs have likewise gotten good at defending their convictions on appeal, and the Fifth Circuit has been pretty efficient in resolving those habeas appeals and clarifying legal issues as they've come up. It's not exactly an assembly line, but neither is it re-inventing the wheel with every death penalty case either — and it shouldn't be. All of which is to say, the absolute number of cases reflect the state's large population, the number of capital convictions represent its juries' belief in the appropriateness of that punishment for the most outrageous crimes, and the system is working relatively effectively and efficiently, all as Texas' citizens and legislators intend. If a Houston or Dallas jury sentences you to death, the odds of your actually getting a lethal injection in less than a decade have become quite good — and that's something that most Texans want to be both true and common knowledge, because death penalties that are never actually administered really suck as deterrents to capital crimes.

Maybe WaPo staff writer Lois Romano got stuck with an assignment she didn't want or didn't like — "Hey, lookee, five of the names written on trial balloons all come from the Fifth Circuit, go write a story about that" — and the best she could come up with before her deadline for this Page A8 story was this collection of superficial half-truths, talking points, and tired clichés. Figuring out whether this is a statistical fluke or something actually meaningful would certainly require some in-depth research and some original thought. I'm probably not the right person to try to do that either; my clerkship is too far in the past and my present practice in the Fifth Circuit too infrequent. But there are such people around who are genuinely knowledgeable, thoughtful, unconnected with any meme-peddling interest group, and available for consultation with full-time paid professional journalists from nationally recognized MSM outlets. In any event, WaPo should get its basic facts right, and this article fails even that test.

Not my job!

Over the course of the Supreme Court career of the Associate Justice whom President Bush selects to replace Sandra Day O'Connor, that Justice will be asked to review many, many cases in which other entities — the Congress, the President, federal and state agencies, state legislatures and state courts, politicians, voters, various private organizations and individuals — have done things which that new Justice is absolutely convinced were profoundly unwise, but yet were within the ambit of those entities' respective authorities to act.

The new Justice, like those already on the Court, will almost certainly possess superb personal qualities — he or she will be smart, hard-working, patriotic, articulate, compassionate, and so forth. The new Justice will have working at his/her beck and call some of the brightest young lawyers of each generation, fiercely loyal and energetically devoted to polishing the new Justice's own thoughts and opinions into tight legal prose buttressed by legions of impressive precedents. Though others may criticize the Justice's and the Court's results or reasoning, they rarely will be able to overturn them; the Supreme Court isn't omnipotent, but one can understand how its inhabitants might sometimes fall under the illusion that it is and that they collectively are too.  And the new Justice may indeed be profoundly more wise than most of the parties whose cases come before the Court.

But by far the single most important quality that the new Justice must have, if Dubya is to keep his campaign promises, is the willingness to write words like these, which Justice Thomas penned as his entire dissent in Lawrence v. Texas (internal citations omitted, emphasis and all but final brackets mine):

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly" [as Justice Stewart wrote in 1965 in his dissent in Griswold v. Connecticut]. If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" And, just like Justice Stewart [in Griswold], I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," or as [Justice Kennedy's majority opinion for] the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions."

If I'd been writing in his place, I'd have stated my revulsion for the Texas statute being challenged in Lawrence far, far more forcefully. "Cruel, bigoted, ugly, an anachronism of which the people of Texas and their state government ought to be ashamed of themselves for not having already repealed on their own." Merely calling that law "silly" or an unproductive way to spend law enforcement resources was inadequate — so I firmly believe as a matter of public policy and fundamental fairness. (And I'd simultaneously defend your or anyone's right to hold exactly the opposite policy views, or religious or personal views, or any combination thereof, about these issues.) But the strength of the language Justice Thomas used, or that I might instead have preferred, on this particular issue isn't what's most important about this dissent.

What's important can instead be expressed in similar but even fewer words than Justice Thomas used: I am not empowered to fix this. That's the essence of what Justice Thomas said, and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming. The result will certainly, inevitably be that many things that ought to be fixed — by Congress or state legislatures or those other entities mentioned above — just won't get fixed, or may get bollixed up even further. Sometimes those entities are obviously falling down on the job, with heartbreaking or alarming or unfair results. But when the Supreme Court seizes power that doesn't belong to it, and exercises it in a way that can't be effectively checked by the voters or the other branches of government, then over the long run, not just the rule of law but our entire system of government are likely to perish.

We're not gods, the new Justice must be willing to say and believe. Because they aren't. There are good people on the Court now, and there are good people among the potential nominees for the soon-to-be-open seat on it. But none of them are gods. It's sufficient instead to hope for — and it's essential for Dubya to find — a new Justice with the courage and the wisdom to say, often, and despite results that he/she will find distasteful, stupid, unfair, reckless, bigoted, offensive, wasteful, unproductive, harsh, tragic, silly, counter-productive, and/or otherwise profoundly unwise: Sorry, but it's not my job.

When/whether Dubya will fire a leaker/lawbreaker

I have a high regard for Tom Maguire and his blog, Just One Minute, and for NRO's Ramesh Ponnuru. But I found myself chuckling over their parsing of Dubya's and his press secretary's various pronouncements over time regarding when and whether the President will fire someone who's accused/convicted of a crime/leak in the Plame/Wilson national security breach/circus act.

Guys: Dubya doesn't parse language and he really sucks at dissembling. He doesn't wonder what the meaning of "is" is. He's not a lawyer. Dubya is the anti-Clinton. These are some of the very things that I — and, I believe, tens of millions of other Americans — like best about him.

If Dubya concludes that someone deserves to be fired, he'll fire that someone. If he doesn't, he won't. But right now, it's too soon for him to draw a conclusion one way or the other. Explaining the decision, or the criteria for the decision, or the predicted criteria for the decision, or the evolution over time of the predicted criteria for the decision — these things don't much matter to Dubya. The decision will, but only when it's time for one.

It is exactly that simple. And it should be.