SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Friday, July 29, 2005

JUDGE ROBERTS, WORK PRODUCT AND EXECUTIVE PRIVILEGE: WHAT NOW, WHAT NEXT? Supreme Court nominee Judge John Roberts is a solid man and a thoughtful attorney. It comes as no surprise to me that the 75,000 pages of Roberts' work product from his Reagan Administration days that was just released by the White House reflect positively upon him, according to early reports. (I'll get back to that in a moment.) But, like the editors at the Wall Street Journal, and commentators such as Prof. Steven Calabresi and Manuel Miranda, I worry about how this turnover might erode executive power.

In their Opinion Journal editorial from yesterday, the WSJ editors note:

A President needs confidential advice from his White House lawyers as much as he needs it from his Justice Department. Advice from lawyers working in both offices is part of the deliberative process and is covered both by attorney-client privilege and the broader doctrine of executive privilege.


Of course, the Republicans never asked for similar kinds of work product to ascertain judicial nominees views or judicial philosophy. Consider this another unprecedented attack upon a President Bush judicial nominee. And, as the editorial notes, the Senate Democrats paid back the President by blasting him for refusing to turn over documents from when Judge Roberts served in the Solicitor General's office for his Administration.

Prof. Steven Calabresi's piece at Daily Standard, notes the problems arising from such work product surrenders. He suggests that it is now only fair for Sen. Charles Schumer to turn over all of HIS staff's internal memos about Judge Roberts and the selection of judicial nominees. Heh. We ALREADY know that Sen. Schumer thinks this whole thing is a WAR. His staff's memos would probably make for fun reading.

But the turnover of the 75,000 pages has happened. So now what? Manuel Miranda gets it exactly right in his latest "The Next Justice" column:

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.


Given their response to the President's gesture, it appears the Democrats have no intention of playing fair. Regardless, the President has gone above and beyond what is expected of him in accomodating the Democrats, so now he must hold firm. The Democrats are NOT entitled to Judge Roberts' work product in the Solicitor General's office. They should NOT get it.

Fortunately, the President has a solid nominee slated for hearings sometime in September. And according to Miranda, the work product reflects very positively upon Judge Roberts. For one, there's this tidbit about the Roberts work product, from Miranda:

...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."


I like that one, too. It's a cogent and proper perspective for a prospective Supreme Court Justice.

(Blue Ash, OH)

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