Saturday, September 17, 2005

And, now that the hearings are over, the pundits get their say . . .

and one pundit's opinion is startlingly stupid when it comes to Justice Roberts. EJ Dionne, either willfully or ignorantly, totally distorts the job of a lawyer, the ethical responsibilities of a lawyer, and the ethical responsibilities of a judge. For example:
Roberts suggested there really were no such limits, or, at least, he wouldn't tell us what they were. "I've been on both sides of this affirmative action issue," he said cheerfully. Yes, but you can't be on both sides as chief justice. He fought the idea that his view of the lawyer's role "sounds like you're a hired gun," but that is exactly how it sounds. A chief justice is hired on behalf of all of us.
Take a good look at that. Justice Roberts is supposed to tell Mr. Schumer (himself a lawyer who should understand that these questions can't be answered by the nominee, or the nominee risks violating ethical rules) how he is going to rule with respect to affirmative action. Dionne isn't satisfied that Roberts indicated that he has been on both sides of the issue as an advocate -- a position any decent lawyer in a particular field finds him or herself in. Dionne wants Roberts to ANSWER THE QUESTION of affirmative action. Dionne knows that he can't. Remember, Roberts is still a sitting judge on the DC Circuit. Not only must he avoid passing on questions that might come before the Supreme Court, he has to avoid discussing questions and committing himself to a particular view for cases that may come before the DC Court.

Was Dionne so worried about things like this when Ginsburg went through this process? I imagine not.
In his testimony, Roberts was brilliant, affable, engaging and amusing. He was also evasive, calculating and, well, slick.

"Would you say there's a general right to privacy?" Sen. Charles Schumer (D-N.Y.) asked Roberts. "I don't know what 'general' means," Roberts replied. Fair enough, though I wish Schumer had also asked Roberts what the meaning of "is" is.
So, apparently, Schumer should ask a snarky question in response to Roberts' response to a completely stupid question. What does Schumer mean by "general right to privacy?" Schumer knows that you don't have a "right to privacy" when it comes to hiding your cocaine. You may have certain other rights against unreasonable searches and seizures, but you don't have a "general right to privacy" such that you can engage in private criminal behavior. So, of course, Roberts' response is not like Clinton's perjury -- Roberts' response is not only rational, but the only reasonable one to make in response to such a silly question.
But the doubts about Roberts have nothing to do with his good heart. The issue is the power about to be put in his hands and into the hands of President Bush's next appointee -- power both will enjoy for life. The Senate and the public have a right to far more assurance about how Roberts would use that power than they have been given in these hearings. The Senate is under no obligation to give the president or Roberts the benefit of the doubt.
There you have it. The problem with Roberts is not so much that Roberts is not a capable attorney and judge, but that he's Bush's appointee--Dionne doesn't like Bush, so he doesn't like Roberts. So, in Dionne's world, unless Roberts is willing to violate the ethical rules that bind all judges and commit himself to ruling in particular ways on particular issues without regard to the facts presented in that case, he is worthy of no deference at all. Maybe Dionne's a lawyer, maybe not--I don't know. If he isn't, he just doesn't know what he's talking about. If he is, he is a political hack.
The administration has stubbornly refused to release a share of Roberts's writings as deputy solicitor general. This is a dare to the Senate, and the administration is assuming it will wimp out. A "yes" on Roberts would be a craven abdication of power to the executive branch.

In keeping with Roberts's painstaking evasions, he wouldn't even express a view Thursday as to whether his deputy solicitor general writings should be released. That was the administration's decision to make, he said. "This was not your decision," Schumer replied. "But you carry its burden." Or at least he should.
So, in Schumer and Dionne's world, if I were to be nominated to be a judge, I would have to violate every confidence I had with my clients to pass muster. Because I am (sort of) conservative, the Senate is entitled to all my previous work. Insane. Completely. Lawyers don't have the luxury of posting their client's confidential information on the internet for all to see. Lawyers are required to maintain confidences--and apparently, a number of previous Solicitors General, both republican and democrat, say that Dionne and Schumer are full of crap.
That's right, and it's why as many senators as possible should vote no on Roberts -- by way of saying no to this charade. A majority of "no's," very unlikely to be sure, need not mean the end of his nomination. It would constitute a just demand for Roberts (and whoever Bush names next) to answer more questions in a more forthcoming way and for the administration to provide information that the public, and not just the Senate, deserves.

How many senators will have the guts to make that statement?
So, Senators should vote no to end the charade of client confidences, ethics rules for lawyers, ethics rules for judges, and common sense. Good work, EJ!! Nominees should "answer more questions" to satisfy everybody on the committee that the nominee shares their (and Dionne's) vision of the constitutional universe--the rules be damned. There's a name for this type of argument in constitutional jurisprudence, and it's called "specious."