July 26, 2005

Judiciary Cmte Document Requests

The Democrats are again asking for documents written by a judicial nominee while serving as counsel for the executive branch. The strategy used against Estrada's nomination revolved around documentation stemming from his work in the Secretary General's office. The White House cited attorney-client privilege and did not release many of the requested documents, giving Democrats the barest of pretexts to continuing filibustering Estrada. The Democrats are asking for similar documents relating to Roberts' work in the Secretary General's office, but they haven't been threatening filibuster over it.

Let's be clear: work product related to the Secretary General's office often falls under attorney-client privilege with the executive branch, and that's extensively protected in US law. Just like religious, spousal and medical privacy protections, the attorney-client privilege is well protected and widely accepted. In this case, every living Secretary General, Democrats and Republicans, came out strongly against the use of privileged documents in blocking Estrada's nomination, saying that it's both private and necessary to preserve the ability of the SG office to function.

Attorney-client privilege must be preserved. Democrats should not be allowed to use SG documents, something they know they will never be given full access to read, as an excuse to filibuster a nominee.

Fortunately, it looks like Roberts will be fine. A number of Democrats have voiced positive comments, and Feinstein even today gave positive reviews of a conversation she had in a meeting with Roberts. Others, like Lieberman, have also been positive. I think Roberts is going to be confirmed.

The question for me is whether he's going to be a reliable vote against abortion. It's unfortunate that extracting a promise from a nominee to vote against abortion would ethically require a recusal on the issue in court. I am concerned that Roberts will end up another Souter, but at this point there's little to do but hope that his intelligence, credentials and professionalism will, in all honesty, lead him to make a decision I like. I wish I felt remorse about being so explicit, but I don't. When we're talking about critical moral issues like abortion, slavery, segregation, etc. that have such an overwhelming constitutional imperative it's hard for me to pretend like any position is morally or politically equivalent to another.

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