Jewish World Review August 3, 2005 / 27 Tammuz 5765

Paul Greenberg

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Any excuse will do | It's not likely anybody is going to find anything serious to question in the only 40 or so opinions that The Hon. John G. Roberts Jr. has handed down in his still brief tenure as a federal judge; he's known, and respected, as a craftsman in his profession.

The reflexive opposition to any nominee of this president who looks suspiciously like a conservative will have to try some other tack.

For example, the loaded question. As in: "Are you now or have you ever been a member of the Federalist Society?"

The Federalist Society is a loose-knit group, mainly of law professors and students, started years ago in reaction to the political correctness that used to be, and maybe still is, the reigning ideology at the more ossified American law schools.

But any connection to the Federalist Society can be made to sound sinister. Even if many of those who wrote the original Constitution of the United States would have had to plead guilty to being card-carrying Federalists. But these days John Adams and Alexander Hamilton, not to mention George Washington, would doubtless be attacked as . . . Federalists! Not to say revolutionaries.

Nothing brings out the McCarthyism in Democratic kneejerks like a judicial nominee they don't really have anything on. If calling the man a Federalist doesn't work, there's always guilt-by-association. This nominee, it turns out, was a deputy solicitor general in the first Bush administration, and the solicitor general he was deputy to was . . . Kenneth Starr! Horrors!

If that doesn't work, and it won't, John Roberts' inquisitors can always demand that this administration produce various confidential memos, drafts or just stray notes he might have written while serving in the solicitor general's office. His critics know full well that no administration would open its most sensitive deliberations to such a fishing expedition, lest it jeopardize executive privilege for all administrations to come.

Nor would any conscientious lawyer violate the lawyer-client privilege by revealing what advice he gave his client. Especially if the client is the government of the United States and the advice was about what legal strategies to follow in order to protect its interests.

Imagine the chilling effect it would have on deliberations within the government if its lawyers knew that any counsel offered in confidence might be rolled out against them years later when they were up for a judgeship. But if the administration declines to produce those memos, it — and its nominee — can be accused of hiding something, of orchestrating . . . a Cover-up!

It's a cheap tactic, but it's been known to work. It was used to derail the nomination of Miguel Estrada to the appellate bench. Not only was he a brilliant lawyer and a Republican comer but, worst of all, Hispanic. And his critics found the combination intolerable. They weren't about to give George W. Bush credit for promoting someone so clearly qualified and so appealing to Hispanic voters to the judiciary.

And so a sustained, and successful, campaign was launched against young Estrada. With the result that the American judiciary was deprived of a bright prospect. The ultimate victim of that filibuster by another name was the quality of American law.

Mr. Estrada's nomination was held up so long, he finally gave up and decided to stick with private practice. But not before seven former solicitors general, Democrats and Republicans, three of whom had been appointed by Bill Clinton and one of whom — Archibald Cox — had served in John F. Kennedy's administration, explained why rifling through the confidential papers of the solicitor general's office is such a bad idea:

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"Any attempt to intrude into the office's highly privileged deliberations would come at the cost of the solicitor general's ability to defend vigorously the United States' litigation interests — a cost that also would be borne by Congress itself." Since the solicitor general's office is also responsible for defending the laws Congress passes and the authority it exercises.

Sure enough, many of the same senators who kept Miguel Estrada off the bench now propose to Estradize the nomination of John Roberts by demanding a peek at confidential papers he is not free to release. They've used the same low tactic against John Bolton, the most promising nominee for American ambassador to the United Nations since the equally feisty Daniel Patrick Moynihan shook the place up — and very much needed to.

To send John Bolton to the U.N., the president has had to use his constitutional authority to make recess appointments while Congress is out of session. What a pity the Democrats don't have a Wendell Willkie — an outstanding leader of the loyal opposition who will support a wartime president rather than harass his appointees.

It'll be interesting to see if this willful minority in the Senate has learned anything from the opprobrium it heaped upon itself in the Estrada affair.

Except, of course, how to sandbag another presidential nominee.

The games have only begun. Soon we'll be hearing about other grounds for groundless suspicion of this nominee — his faith, his clients, his wife, her clients . . . any excuse will do.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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