Sunday, July 24, 2005

Michael: White House Won't Show All Roberts' Papers

In the first genuine controversy of the Roberts confirmation process the White House has said they will refuse to disclose some materials written by Roberts during his time with first Bush, and possibly the Regan Administrations. Their justification is that that it would violate attorney-client privilege and chill candor of communication between the President and his advisors.

Both excuses are pretextual. Government lawyers do not act as personal counsel to the President when working on government business. There is no attorney-client privilege between Roberts and any of the Presidents in who's Administrations he has served. As to chilling frank communication between the advisor and the President, that too is ridiculous. The public's business is public, save for information which could imperil ongoing military or covert operations. A lawyer asked to prepoare a memo advising a course of action is trying to achieve the client's goals and interpret the law in the most favorable and persuasive manner. No lawyer worth his salt is going to worry about how that makes him look in a hypothetical future disclosure. But the views expressed in such communications may shed light on a lawyer's own views and temperment, which are valid subjects of inquiry in a hearing for a lifetime appointment - in fact, they are the most salient subjects.

The simple fact is that there are undoubtedly positions taken in those materials that Roberts and the Administration would rather not have to explain of defend. But explaining his views of the law is the duty of Judge Roberts in this confirmation. It is the public's right to know Judge Roberts' views as embodied in the work product of his career. If some of it can be misinterpreted by the public, it is Roberts' place to correct that interpretation and explain himself. We deserve no less from someone who will have a profound impact on American law for a generation.

This episode is a part of a seamless programme of stonewalling and secrecy that this Administration has followed from day one. In their view, the public has no right to know the public's business, except as suits the politicians. It is unfortunate that politics have degenerated to the point where a nominee's views need to kept secret for fear that the media and the opposition will sensationalize and decontextualize the record might reveal. The confirmation process should be sufficient that anything inflammatory can be given proper context and weight. Things which are not just inflammatory, but genuinely disqualifying, should be brought out in hearings, and should prevent the nominee from being confirmed. The process of advise and consent isn't a rubber stamp for the Executive's whim, it is the Constitional duty of a co-equal branch of government.

Unfortunately, the political environment of personal attacks the GOP and the media have fostered make considered judgements rare in D.C. these days. This Adminstration's stonewalling is simply fear of what might happen to Robert's confirmation in the climate they have themselves promoted. The victims of the GOP's poisoning of our political atmosphere may be the public's right to know Roberts' legal views, and Roberts' right to a full and fair confirmation hearing.

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