thedrifter
07-29-05, 12:49 PM
THE NEXT JUSTICE
The Roberts Documents
The White House Counsel's office now needs the stomach to fight.
BY MANUEL MIRANDA
Friday, July 29, 2005 12:01 a.m. EDT
Whatever is to be said, as the Journal's editorial page did yesterday, about whether the White House blundered in volunteering 75,000 pages of John Roberts's work product from his years in the Reagan administration, one sentiment is widely shared among conservatives: What a relief. Judge Roberts's writings as a young lawyer show him to be a solid constitutionalist.
Beyond the attributes of character, temperament and credentials, George Washington singled out one criterion for the first Supreme Court justices: that they support the "new" Constitution. Powerful voices like Thomas Jefferson, who, lucky for us, was in Paris during the Constitutional Convention, would have drafted and interpreted the Constitution quite differently than the Federalists whom Washington picked for the high court. Adherence to the Constitution matters no less now.
George Washington would have been happy with John Roberts. Of the documents released this week, my favorite is his response to the House Democrat who proposed that the White House and Congress hold a "conference on power-sharing" to iron out the duties of each branch. Said then-Mr. Roberts: "There already has, of course, been a 'Conference on Power Sharing. It took place in Philadelphia's Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the 'report' it issued." If this is an indication of the nominee's wit and clear-headedness, move over Scalia.
The decision to release the Reagan documents, however, is likely to come back to bite the White House. Specifically, it makes it more difficult to hold the line on its refusal to release papers from the Solicitor General's office, where Judge Roberts worked during the administration of George H.W. Bush. While distinctions arguably exist between categories of legal documents, all constitute the private advice of lawyers to their client. Without the promise of lasting confidentiality, government lawyers will be wary of offering their candid counsel and presidents will be reluctant to seek it.
The key question now--more important than whatever Democrats find in the Roberts papers--is whether the White House Counsel's office has the stomach that a Supreme Court confirmation fight requires. Having drawn a line as to what privileged documents it will and will not surrender, the White House now must stick to it. It must not waver, tire, falter and fail later.
If this sounds familiar, remember back to last year, when the White House first argued that National Security Adviser Condoleezza Rice should not testify before a congressional committee for reasons of presidential privilege; it later caved and sent Ms. Rice up to the Hill. More recently, the White House Counsel's office failed to put muscle behind Senate Republicans' efforts to end judicial filibusters in May.
All future presidents lost a little constitutional power because the White Counsel's office did not have the stomach for those fights. It remains to be seen whether John Roberts's confirmation battle will be different.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
Ellie
The Roberts Documents
The White House Counsel's office now needs the stomach to fight.
BY MANUEL MIRANDA
Friday, July 29, 2005 12:01 a.m. EDT
Whatever is to be said, as the Journal's editorial page did yesterday, about whether the White House blundered in volunteering 75,000 pages of John Roberts's work product from his years in the Reagan administration, one sentiment is widely shared among conservatives: What a relief. Judge Roberts's writings as a young lawyer show him to be a solid constitutionalist.
Beyond the attributes of character, temperament and credentials, George Washington singled out one criterion for the first Supreme Court justices: that they support the "new" Constitution. Powerful voices like Thomas Jefferson, who, lucky for us, was in Paris during the Constitutional Convention, would have drafted and interpreted the Constitution quite differently than the Federalists whom Washington picked for the high court. Adherence to the Constitution matters no less now.
George Washington would have been happy with John Roberts. Of the documents released this week, my favorite is his response to the House Democrat who proposed that the White House and Congress hold a "conference on power-sharing" to iron out the duties of each branch. Said then-Mr. Roberts: "There already has, of course, been a 'Conference on Power Sharing. It took place in Philadelphia's Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the 'report' it issued." If this is an indication of the nominee's wit and clear-headedness, move over Scalia.
The decision to release the Reagan documents, however, is likely to come back to bite the White House. Specifically, it makes it more difficult to hold the line on its refusal to release papers from the Solicitor General's office, where Judge Roberts worked during the administration of George H.W. Bush. While distinctions arguably exist between categories of legal documents, all constitute the private advice of lawyers to their client. Without the promise of lasting confidentiality, government lawyers will be wary of offering their candid counsel and presidents will be reluctant to seek it.
The key question now--more important than whatever Democrats find in the Roberts papers--is whether the White House Counsel's office has the stomach that a Supreme Court confirmation fight requires. Having drawn a line as to what privileged documents it will and will not surrender, the White House now must stick to it. It must not waver, tire, falter and fail later.
If this sounds familiar, remember back to last year, when the White House first argued that National Security Adviser Condoleezza Rice should not testify before a congressional committee for reasons of presidential privilege; it later caved and sent Ms. Rice up to the Hill. More recently, the White House Counsel's office failed to put muscle behind Senate Republicans' efforts to end judicial filibusters in May.
All future presidents lost a little constitutional power because the White Counsel's office did not have the stomach for those fights. It remains to be seen whether John Roberts's confirmation battle will be different.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
Ellie