GoogleIt Mail IT Print IT PermaLinkThe President's Lawyer As Supreme Court Nominee
06:47:29 PM
Written By : Richard SchwartzCategory : News And Comment
Location : Nashua, NH

I'm going to get back to blogging about Supreme Court issues now. I had expected to do a series about the language tricks that people are playing to distort the issues involved in a nomination, but the Roberts nomination really didn't fall victim to a lot of distorted rhetoric, particularly after the nomination was shifted over from the O'Connor vacancy to the Rehnquist vacancy, so I never got around to those posts I think I will get back to it in the next few days, though. But right now I have something else I want to comment on.

One of the contentious issue, probably the only really contentious issue, in the Roberts nomination was the question of which of his writings should or should not be released to the Senate for consideration during his confirmation hearings. Roberts had served in the DOJ in both the Reagan and Bush Sr. administrations, and claims were made that releasing his papers would violate the attorney-client privilege of those administrations. Now, President Bush has nominated the current White House counsel, Harriet E. Miers, for the O'Connor vacancy. The issue of privilege is sure to come up again.

Any President who nominates his own attorney -- or the attorney for one of his predecessors -- for a Federal judiciary position should, IMHO, be fully prepared to waive any claim to privilege. Why? Because the President works for us. The President's lawyer is our lawyer. We pay her salary, and she doesn't represent the President... she represents the Office Of The President. The DOJ also works for us. The Attorney General and Solictor General are our attorneys. They bring cases on behalf of us... The People. And while the President should be entitled to confidential advice from his attorney, and the DOJ should be entitled to confidnential advice from their attorneys, once a President nominates our lawyer to a Senate-confirmable post, our interest in what our lawyer has done on behalf of our government trumps the President's interest. It trumps any previous President's interest. It trumps the DOJ's interest. Furthermore, if privilege isn't waived for confirmation hearings, and the nominee is approved, the chances are quite high that a conflict of interest will arise in cases that come before the court in the near future, and our interest in knowing the existence and nature of what conflicts are likely to come up trumps the President's interest.

Simply put: the President has his choice of whom to nominate, and if he values his own or his predecessors' privilege over and above the people's right to know what our lawyer has done and where our judges stand on matters that the government has brought before the courts -- or considered bringing before the courts -- then the President should nominate someone who isn't covered by that privilege.

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Comments :v

1. Jeff Crossett10/03/2005 10:31:41 PM

Wow, and I thought Roberts was a babe in the woods!! This one is just plain silly! Maybe this is just some sacrificial offering to his opponents just to let them feel like they have denied him something ;)

2. Richard Schwartz10/04/2005 12:25:36 AM

The fact that she has no experience on the bench doesn't bother me at all. Some great Justices had none. The fact that there's little public information about her positions on issues that might come before the court doesn't bother me. But does she have any distinction at all on her resume? Obviously, information about Miers has yet to come out completely, but I'm wondering... Did she ever clerk for a judge? Not necessarily a Supreme Court Justice or even a Federal judge. FOr any judge at all? Does she have any experience to speak of arguing in appellate court? In any court for that matter? And has she got any academic record, or anything at all that gives her someintellectual stature within the legal profession? Of the nine current Justices, only two don't have at least one standout qualification in academics besides their law degree, and one of the two (Stevens) clerked for Justice Rutledge. Was Miers on the law review at SMU? Did she finish at or near the top of her class? Bear in mind that Just O'Connor, whom Miers would replace, was on the Stanford law review and finished third in her class at one of the nation's premier law schools, with future Chief Justice Rehnquist being one of the two ahead of her. Justice Scalia was a law review editor at Harvard and a law professor. Justice Breyer clerked for Justice Goldberg and was a professor at Harvard. Justice Souter was a Rhodes Scholar. Justice Ginsburg was on law review at both Harvard and Columbia (she transferred), and a professor at Rutgers, Columbia and Stanford.

So let's put it this way... does Miers at least have the intellectual chops of, say, Justice Thomas?

3. Jerry Glover10/05/2005 12:54:22 AM

Miers is a stunningly undistinguished nominee. As has been pointed out, others have come to the Court without judicial experience, but they have generally had some record of accomplishment or distinction. A very frank discussion on her and that subject was the subject of one segment of Monday's Charlie Rose show and it wasn't pretty. The panelists were hardly partisan opposition either; Roger Pilon of Cato Institute, Nina Totenberg of NPR and Laurence Tribe, con law prof at Harvard Law. Very much worth watching if you can catch a replay (PBSYou via satellite will show it again Wednesday).

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