Godammit, my computer freaked out and posted while I was still composing. Please ignore the above until I get my full post done.
OK, let’s try that again…
Your premise is incorrect. The formulation of legal argument does benefit from secrecy. Tremendously so. Which is why the duty of client confidentiality is so important. That benefit is the same whether the client is an individual, a corporation, or a government. The ability to kick around ideas without worrying about how they may sound on the front pages is of immense value.
The burden of secrecy is lesser at the SG’s office, too. The SG’s office does not make policy or promulgate legislation. It is, essentially, a law firm dedicated to defending Congressional acts from legal challenge. While its arguments may eventually carry the day, nothing it does affects the law directly – it is the SCOTUS that ultimately holds a law constitutional or not.
The SG’s office should be treated just like a law firm practicing appellate law. Its lawyers need to honor their duty of confidentiality, and their client needs to shelter their effective operation by not waiving that duty unless absolutely necessary.**
Have you stopped beating your wife?
How so? What harm would disclosure do to your argument? If an argument is persuasive, would it be less so if we knew how you arrived at it? Perhaps if it were persuasive because of trickery rather than because of the inherent value of the argument itself.
The law isn’t a competition, where you “win” in part by keeping your playbook secret. (ok, to a certain extent it is just that - but it shouldn’t be) and there’s certainly no harm in requiring that the goverment to always argue from an open book.
Attorney-Client privilege is a right, much like the right to privacy, that we would do well to deny to the goverment if we wish to remain it’s rulers rather than it’s subjects.
I think I’m going to require more than just your assertion that secrecy is useful in order to believe it.
No. the SG’s office should be treated like a group of public servants operating in the interest of the public. Elevating the goverment to the status of ‘client’ with the full rights of a person is lunacy.
The goverment isn’t a person, it’s a structure. It has no rights of it’s own and no interest’s of it’s own to protect. “The goverment” is entitled to secrecy only to the extent that that secrecy best serves the interest of the people it represents.
Kinsley is an awfully smart guy, but I wasn’t that impressed with this particular article. Taking the pot/kettle first: There’s no question that for several years both parties have behaved badly on judicial nominations. I think the Dems were worse offenders than the Reps, particularly their mistreatment of Bork and Thomas. YMMV.
The Estrada filibuster is a major escalation. It’s the first filibuster ever of an appellate court judge. Nor am I pleased with a defence of “two wrongs make a right.”
Taking Kinsley point by point:
Comparing Estrada to a gangster is just disgusting and hateful. This is writing like Ann Coulter. Nor did Estrada “take the fifth.” In fact, Estrada’s opponents have not shown that Estrada’s legal philosophy is unusually hidden. The liberal Washington Post doesn’t seem to think it is.
This is the horrible view that Estrada shares with Republicans and conservatives: * Judges should not prejudge the issues that will come before them.*??
This is the dumbest comment in the article. A writer says “obviously” when he hasn’t got evidence. In this case, there are several other theories that are at least equally plausible. The obvious one is that the Democrats are looking to find fault,so they are apt to twist anything he says and use it against him. A more subtle reason is that there may be nothing to add. He said his philosophy was to judge cases in the light of law and precedent. It’s not easy for me to see what could be added to that, unless he were to commit his position in advance to cases that might come before him.
This is Kinsley at his most clever. The trouble is that he is inventing a new standard. Appellate judges are typically approved without testifying to their views on cases that might come before them. So, Kinsley is trying to justify a filibuster based on a standard that has never even justified a negative vote.
This may be true, and it’s one reason why the Democrats seem to be wildly over-reacting. If Bush ever nominates Estrada for the SC, there will be an appellate court record of his decisions.
This is spin. President Bush believed that the ABA was biased against conservatives. The Democrats supported the ABA and argued that its ratings were valid. Bush’s complaints about the ABA’s liberal bias do not justify the Democrats’ ignoring its rating.
Ultimately, Estrada will be confirmed or not based on political considerations. The Democrats have never had an intention of judging him fairly. Ted Kennedy said so.
Work papers which their own former SGs say should be kept confidential.
No, they are not. They are complaining that they didn’t get answers, even though they did not follow up and ask the questions.
Ted Kennedy said the reason was so as not to face him as a Supreme Court nominee down the line.
Less forthcoming that who? I challenge you to find a selection of other appellate court nominees from both parties and show that Estrada has been less forthcoming than they were. For that matter, I challenge you to show that SC Justice Stephen Breyer was more forthcoming about how he would rule.
Huh? Ya lost me there, Dewey.
Well, leander, I could be a snot and tell you to buy the damn publication I write for, but I won’t. 
Last night here was actually very interesting. At about 9 p.m. on Wednesday, nearly every Republican was at their desk to show they were “ready to vote” in the words of Bill Frist. C-SPAN2 viewers will know that the only time you have that many Senators in the chamber is during an actual vote. Debate is largely prefunctory, especially on partisan matters such as this. Ain’t no one changing their minds on this one.
What was even more surreal is that about 12 or 13 House Republicans came onto the Senate floor as a show of support. Most of them were freshman reps., except for the guy who brought them over, one Tom DeLay. Katherine Harris was one of the people who came over with him.
This battle is going to go on for awhile. It looked for a bit there like they could actually cancel next week’s recess, but that threat seems to have faded. (Usually that threat is empty, but a late January recess was cancelled when senators couldn’t agree on committee funding, so we reporters were a little more on edge about it than usual.)
The last I heard is that it could go on for weeks after the recess. If the Democrats simply refuse to give, I’m not sure what Bush will do about the nomination.
I’d love to give you more of an opinion on this, but the rules of my profession kind of forbid that.
I’d be honored. Philosophical and political differences are what make our judiciary so valuable. I agree with 90+% of the decisions that come out of the current, Republican-dominated SCOTUS. I agree with 90+% of the decisions that come out of the current, and for the foreseeable future, Republican-dominated Supreme Court of Texas. And I’ll tell ya, the one time I was on a conference call with the nominee currently being filibusteres, I (personally) agreed with him. It’s the stuff at the 10% margins that make the law so damned interesting. If I wasn’t happy to argue about it, I wouldn’t be hanging around here.
Oh, except that Dewey’s a transactional guy, and transactional lawyers are inherently unfit for judicial office because they haven’t read a case since law school. 
(I intend to bring this argument out of the closet as soon as Al Gonzales gets his nod.)
Oh, and to amend my previous remarks, I don’t think the Republicans will try to force a vote.
(Some of you may know this, but many may not, so I’ll explain this.) The only way to force a vote in the Senate is by invoking cloture. To invoke cloture, first you have get a petition signed by 16 senators. Then, two days later, the Senate HAS to vote on that motion. But here’s the twist: A cloture motion doesn’t require a simple majority. Instead, it requires 60 votes. If the cloture motion passes, debate on the pending business is limited to 30 hours, followed immediately by a vote.
Only three Democrats have said they’ll support Estrada. (Breaux, Nelson of Nebraska… and some other person I can’t remember, but the chances are 90 percent that it’s Zell Miller, who has not voted once with his party on party-line votes this Congress.) So the GOP doesn’t have enough votes to invoke cloture, and the rest of the Democrats are pretty iron-clad in their opposition. We’re in for the long haul.
Wow SNenc, thanks much for the insight. Sounds fascinating (though I’m sure the procedural business is probably quite boring, eh?)
Any further details/insights are greatly appreciated - keep us informed as much as you can. Oh, and I’d buy your publication if I knew what it was.
Leander, if you work in the Beltway for government or lobbying, your company might subscribe to one of the publications we put out. But I doubt you subscribe on your own, since that costs about more than $1,000 a year. I think you can buy individual copies of our magazine at some Capitol Hill bookstores, but I write mostly for our daily publication and the Web.
I’m still new in this job, so I still find much of it fascinating. Though I have gotten over being starstruck and now have no problem chasing after senators to ask them questions.
Holy crap… I just had a completely casual, joking conversation with a senator who came up to the press gallery and walked right past my computer. To think the first time I even entered this city was in Nov. 2000 on a college trip. It blows my mind sometimes.
As for who I work for, we’re more commonly known by our initials, which rhyme with the initials of a well-known, classy men’s magazine.
SNenc, very cool. Sounds like a great place to work, esp. with your proximity and access to the Senators. There is something quite awesome about the Capitol Complex, IMHO; I certainly envy your daily interaction with our representatives in such a place (though sorry to hear about the late nights).
I, unfortunately, live on the West coast (SoCal), so I doubt I could even find your publication out here. But we do have lots of fake boobs. And plastic people. (Or is it the other way around…)
Well, it is about seventy degrees all the time, so I can’t really complain…
The whole reason that privileges exist is because they are useful. They weren’t created just for the fun of it.
As minty so cheerily points out, I’m not a litigator, but I know enough about preparing a case to know that it isn’t something you want the world privy to while you’re doing it. You want to prepare the strongest argument possible. That’s necessarily going to entail revision, both to your substantive argument and to your presentation. It will entail discussing which of your arguments are strong and which are weak. Privacy in preparing those arguments is invaluable.
And as I noted, I don’t see the burden of confidentiality being terribly great in the SG context.
Eliminating privilege for the SG’s office would also tilt the field in favor of those challenging Congressional acts. You’ll like or dislike that depending on whose ox is being gored. Given your proclivities, I’m sure you won’t mind at all if the act in question is one limiting abortion rights, but you might mind terribly if the challenged act is a gun control measure. Frankly, I can’t see any reason to force the SG’s office to fight with one hand tied behind its back.
Well…uh…er…damn.
Ever post something, then go back and realize it didn’t make much sense?
Oh yeah? Let’s talk Revlon duties, laughing boy…
What? You’re a transvestite? That’s okay, I believe in diversity on the bench.
You need to watch what you say in this thread, minty – december will again allude to Mr. Estrada being Hispanic, and cite you in support of his confirmation! 
:: ducks and runs :::
Diversity, eh? Let’s count the points:
Hispanic …1
Immigrant …1
Speech Disability…1
Republican…-1,000
Nope. No diversity here.
What different standards? In both cases, Congress is confirming someone for a life long judicial position. If your argument is that, historically, they don’t take quite as long to confirm an appelate court judge as they do to confirm a supreme court justice, then you’re right. That doesn’t show a difference of standards, it merely shows a lower level of interest in getting the right person for one of the jobs. Historical or not, tradition or not, whether it was done during the Clinton administration or not, failing to care as much because the person isn’t going to be a Supreme is a mistake.
Maybe I’ve missed it, but you still haven’t addressed Polycarp’s red herring rebuttal to your belief that the law is the law and a judge’s role is to accurately interpret it, whomever the judge may be.
But, when you get around to discussing it, let’s throw another curveball your way. Since you believe what you do about judges, what about politicians? They’re part of the Legislative branch and their duty is to create legislation that best serves their consituents. They are representatives of a the public and their job is to fairly represent the people in their districts.
Given that, should it really matter if they are Democrat or Republican? After all, their personal opinions should never get in the way of serving the best interests of their constituents, right?
You’re exaggerating the lack of difference. Did you watch the Clarence Thomas hearings? Thomas testified for five days, and other witnesses were questioned for three days. Some of the sessions ran far into the night. By comparison, Estrada was questioned for one day, which is unusually long by historical standards for appellate judges.
Note that a similar argument could justify literacy tests for voting. “A high degree of literacy is important for a voter. Even though white voters aren’t required to take these tests, it would be a mistake to let this black person vote unless he passes this challenging literacy test.” Ugh!
Nor have you addressed the point that there’s been no showing on this thread that Estrada was unusually reticient about his legal views. The Washington Post and I believe that the entire “stealth candidate” accusation is bogus. I’m still waiting for you or some other poster to take up this challenge.
If you re-state this point in a straight-forward way, I will respond.