In Defense of "Bolton-ing"

Having successfully derailed Senate approval of Bolton as UN ambassador (although not his appointment) by demanding ever more in the way of information about the nominee, the Democrats appear poised to try a similar tactic with the Roberts nomination to the Supreme Court. A significant number of documents written by Roberts during his tenure in the Reagan Administration Justice Department and White House Counsel's office have already been released. However, the Democrats want more. In particular, they want any documents Roberts wrote when he worked as an Assistant Solicitor General in George Bush Sr.'s Administration. The White House is resisting, asserting, inter alia, a claim of attorney-client privilege.

Senator Leahy notwithstanding, I think Bush's privilege claim is actually pretty solid. But that's beside the point. The attorney-client privilege allows one to keep documents subject to it confidential. But is does not require that. The President, as the owner of the privilege, may elect to waive it and produce the documents. So, the question before Bush is not may he produce the documents but should he.

The WSJ maintains (of course) that Bush has already gone to far in releasing documents, arguing that:

By authorizing the release of documents from Judge Roberts' work in the Reagan Justice Department and White House Counsel's office, the Bush Administration had made it that much harder to refuse Democratic demands for his later work product from the Solicitor General's office. More important, it makes it harder for the White House to defend the vital constitutional principle of executive privilege.

This is not some fine legal matter. It is essential for the workings of government that decision-makers hear the candid views of the people who work for them. That won't happen if they believe Dick Durbin might one day be reading from their memos on the Senate floor. Or, as Clinton White House Counsel Jack Quinn put it the other day, if the public has unfettered access to the advice that Presidents get, "Presidents won't get very good advice."

I don't dispute the importance of the attorney-client privilege, or even of executive privilege, and I agree that "unfettered" public access to the advice the President is getting is a very bad idea. But that's not at all the issue here. We are not talking about "unfettered" public access to all advice this (or indeed any) President is getting or even has gotten. We are talking solely about the advice that one man -- and not a very senior man at that -- gave more than a decade ago, not to the President, but to the senior staff of a President who has been out of office for 13 years. Even so, I do not really dispute the right of the President to keep that advice confidential if we wants to.

But should he want to?

The WSJ argument that releasing such documents would establish a "precedent" that will undermine any future claim of executive/attorney-client privilege does not seem credible. At least where Congress is not involved in investigating possible criminal activity by the President or his staff (cf. United States v. Nixon), the right of the President to keep communications to and within the Administration confidential was recently, and pretty resoundingly, affirmed by the Supreme Court in its 7-2 decision in Cheney v. District Court. Given that, the general validity of the privilege seems pretty safe even if a President decides to waive it in particular cases.

The more important point, though, is that "precedents" are necessarily confined to their facts. Thus, even if Bush did allow "unfettered" access to everything John Roberts ever said or wrote, the most that could be said to have been established is a precedent allowing (but not requiring) public access to the advice that a person has given to a former President if, but only if, a subsequent President decides to appoint that person to the Supreme Court. That does not seem like a particularly dangerous precedent even if you support the general principle that Presidents are entitled to keep the advice they get confidential.

So, given that we do not have to worry too much about precedential aspect of Bush's decision, should Bush release the documents?

I believe he should for two reasons: one practical and one normative.

First, as a practical matter, refusing to release the documents is foolish. By doing so, Bush inevitably creates the impression that he is hiding something. The public does not like those sorts of "games" in any event, but particularly when the issue is a lifetime appointment to Supreme Court. So, by fighting disclosure, Bush gives the Left a powerful tool in seeking to derail or at least delay the confirmation. And it is a tool that he could entirely eliminate simply by giving the Democrats what they have asked for. Moreover, the fight over disclosure (and the sense it creates of a possible "cover-up") inevitably tends to give the contents of the documents an importance they would not have if they were disclosed immediately. This, in turn, makes whatever is contained in the documents appear to be something the President is ashamed of, even if he is not in fact.

It is possible of course, that there is something truly nefarious in these documents. And, if there is, that makes the normative case for disclosure all the stronger. But in reality, I suspect, the very most the documents would show is that Roberts is a smart, perhaps acerbic, "strict constructionist" ala Scalia or Thomas. Perhaps is will even show that Roberts believes or at least believed, that Roe v. Wade was wrongly decided. Ask yourself, though: who would be surprised to find that out? That is exactly the type of Justice Bush promised to appoint and if there is one thing for which W is dependable, it is doing what he says he will do. If that is, in fact, all that the documents would prove, Bush would be far better off releasing the documents and defending their contents than hiding the documents and making it appear that there is more at issue here than judicial philosophy.

This practical argument is probably one that would appeal to Bush himself, and a debate around these practical political pros and cons is probably going on in the White House even as we speak. To me, though, the more important argument for release of the documents is a normative one: the public, or at least the Senate, does have a right to whatever information is available on the judicial philosophy of the men and women nominated for the Supreme Court. In this regard, a Supreme Court nominee is no different from any person "running" for high federal office.

No President -- Republican or Democrat -- is likely to concede this point. Regardless of Party, the goal of any sitting President is to get his or her nominees confirmed as quickly and as painlessly as possible. Allowing the opposition access any information about a nominee inevitably complicates that process. But, I submit, this principle would be a very good thing on which to reach consensus that would be at least morally binding on future Presidents.

My reason for saying this stems from an argument I have made before in these pages: The Supreme Court is now, and probably always has been, a political branch of our government, and through its power to invalidate actions of the other two Branches it wields enormous political power. In a democracy, all such political power must utlimately be subject to the will of the people as expressed through the ballot box. By requiring that Justices be appointed rather than elected and then providing them with life tenure, the Constitution (quite wisely) goes to great lengths to insulate the Justices from the "will of the people." But, as with all else in our Constitution, the insulation is not complete. The nomination/confirmation process, coupled with the inexorability of mortality, ultimately provides the method by which Supreme Court jurisprudence that is out of touch with the views of the majority is ultimately realigned to conform to those views. For that mechanism to work, however, the Senate, at least, has to have access to the information it needs to judge how the nominee will approach the work of the Supreme Court and the issues likely to come before it if he is confirmed.

Inevitably, of course, such "full disclosure" increases the potential for the sorts of vituperative nomination processes that surrounded the nominations of Robert Bork and Clarence Thomas. I, like so many others, deplore the tenor of such proceedings. But I do not believe that justifiable distaste for manner in which such a debate is likely to be conducted should deter us from seeking to have the debate itself. And, inqury into the writings and thinking of the nominee is an indespnsible part of that debate.