Wednesday, September 25, 2002

The Times' Reines of Terror Continues...

This time they're taking the Administration to task for not providing the workpapers for DC Circiut Court nominee Miguel Estrada. To quote the Times:

Mr. Estrada, who has a hearing before the Senate Judiciary Committee tomorrow, has made few public statements about controversial legal issues. But some former colleagues report that his views are far outside the legal mainstream.

The best evidence of Mr. Estrada's views is almost certainly the memorandums he wrote while working for the solicitor general's office, where he argued 15 cases before the Supreme Court on behalf of the federal government. In these documents, he no doubt gave his views on what position the government should take on cases before the Supreme Court and lower federal courts. Reading them would give the Senate insight into how Mr. Estrada interprets the Constitution, and in what direction he believes the law should head.

What the Times isn't making clear, however, are that these memos are work documents, not final positions. And the Senate wants all of them, not just on selected matters. Now, I can't speak for anyone else, but when I'm hashing out an issue, I try to think through an issue from every possible perspective. As a result, looking through what my thoughts were, I'm sure someone could find silly or embarrasing fodder. Thats probably why a number of Solicitor Generals on both sides of the aisle have come down dead set against this. Raising possibilities shouldn't be the basis of judgement - your pronouncements should.

The fact that the Senate is requesting Mr. Estrada's full history of work documents only lends additional credibility to the notion that they're seeking fodder for political attack. Contrary to the Times' assertions of a precedent, Congress hasn't ever requested the full history of a nominee's workpapers. If I recall correctly, in the case of Mr. Bork, only selected, non-specific memos were demanded (legal theory versus case specific strategy). Moreover, Mr. Bork's treatment at the hands of the Senate hardly inspire confidence that this information is being requested only to allow an informed decision on Mr. Estrada's views.

Whatsmore, Howell and Company seem a little reluctant to address the fact that, while Mr. Estrada has made "few public statements about controversial legal issues", he has not yet had the appropriate venue, since the Senate Judicial Committee has requested this information without having a hearing on the nominee's appointment.

Rather than a case of having "an administration that loves secrecy" (by the way, Howell, nice evasion of the issues with an ad hominem), what we have here is a case of a group of Democrats on the Judicial committee trying to put the kabosh to the Administration's judicial nominees before they can make it to the full Senate, where they know the nominees will win confirmation. All of this is happening, mind you, while the federal bench is undergoing a vacancy crisis. And Republicans get called obstructionist?!