A government lawyer serves the executive branch, not the president personally. That was a bit of an issue at one point during the perpertual investigations of Pres. Clinton, who lost in his attempt to keep some discussions with the White House Counsel privileged because they were discussing his personal legal problems, not legal problems of the Executive Branch. It is my understanding that the White House could have waived the privilege, and chose not to do so.
For those who are arguing that “lack of knowledge” of Estrada’s views is sufficient reason to disqualify him:
Every Senator on the Judicary Committee had the opportunity to give Estrada written questions to answer after (and in light of) his hearing testimony.
Two did.
The Senators who complain most loudly now did not.
Before I start I’d just like to mention that I read the transcript of that hearing and all it did was stir an intense desire to kick every single member of that committee right in the ass. This is supposed to be the SENATE ferchrissake! What kind of juvenile debate bullshit is crap like this
YEA! Citing an editorial AND some form of the fallacies of argumentum ad numerum/Appeal to authority! The absolute clincher was when they were wrapping it up and they said something like “we’ve had a good debate today” or “this has been a good debate”.
It reminds me of an old saying, “laws are like sausage. You have more respect for them if you don’t know how they’re made.” Indeed. Now on to other business.
Show me a cite from a Justice Department official using the word “confidential” in regards to these documents or retract it. I’ve read a lot of articles and even transcripts about this case now and I’ve not seen this word used by anyone but you. For instance, in the transcript you quoted, the word “confidential” is not used at all even though the documents in question are discussed. Surely you are aware you are not at liberty to declare these documents confidential on your own authority. I have seen the administration claim “privilege” which is emphatically NOT the same thing.
Your current line of arguement, “but it’s never been done!” sounds like the whining of an inept chess player when his opponent did not fall for the Scholar’s Mate(four-move checkmate, one of, if not the oldest trick in the book). The senators are under one obligation, a constitutional one, to advise and consent. Selection criteria used for previous nominees are NOT binding precedent. Find a new trick, your opponent isn’t going to fall for the Scholar’s Mate again.
Enjoy,
Steven
I think the degree to which Executive Department papers, even those done in the context of legal advice, are confidential, was spelled out quite explicitly in U.S. v. Nixon, 1974. And the bottom line is that while the President and his senior appointees may expect a high degree of confidentiality, such paperwork may and should be released when the good of the nation depends on it, as in when they are needed as evidence for the proper conduct of a trial or a Congressional investigation.
An actual filibuster battle is getting closer.
http://www.boston.com/dailynews/042/wash/Democrats_say_they_have_enough:.shtml
Good. Now maybe he’ll start answering questions:
And maybe now he’ll be a bit more open about his past:
And when he does, then vote.
**Strangely enough both sides of this debate want to see the filibuster take place. Bush will never release the memos, because it would be improper. Also, it wouldn’t do any good. These memos are just a pretext. If they were released, the Democrats would seize on something in the memos as a new pretext.
Meanwhile, on FNC Special Report, I just saw the head of the largest and oldest Hispanic organization in the country stand with Republicans and demand that the Dems vote for Estrada. He deplored Schumer’s leadership role, and pointed out that Schumer is up for re-election in 2004. This battle could move a lot of Hispanic voters from the Democratic camp to the Republican camp.
The only question is just how badly the Democrats will be hurt politically by this. I love it!
Nonsense. Those memos were produced for the executive branch, and Bush is the executive. The privilege is his to waive, just as if a client of mine were to give someone a memo I did for them.
If you say Bush has the power to release the memos, I assume you’re correct. However, all seven living former Solicitors General say it would be improper to release them. The group is split 4-3 between Dems and Reps (although I can’t remember which party has the 4). These former SGs ought to know what’s proper in this case.
Well duh. They don’t want the president releasing their memos. I’d complain if GigantoCorp released my memos to them. But the client is the owner of the documents produced by the lawyer, and the client is the person who gets to decide whether they stay private. The lawyer has no veto over that decision.
In view of the precedent I mentioned in my last post here, I’d like to point out a rather peculiar analogy that occurred to me in reading december’s post just above. I need to emphasize that the second post here is **not something december said, to avoid any insulting misattribution of it to him.
Change two words in this paragraph, and you have the following:
Needless to say, I am not accusing Mr. Bush or Mr. Estrada of Watergate-style hijinks. But I’m drawing the analogy to make the point that there are legitimate grounds in this case for the release of at least some of Mr. Estrada’s memos, in order that the sort of investigation into his jurisprudential philosophy that I and others have been saying is proper can be appropriately done by the committee assigned to carry out the investigative stage of the Senate’s constitutional duty.
To give december his due, I suspect that there are some less-than-scrupulous politicans, publicists, and polemicists who will use the tone of material written in a counsel-for-the-government status as argument against Mr. Estrada’s ability to judge fairly – and this would be unjust, and I would hope fair-minded liberals and conseratives alike would speak out against it. But there are serious grounds for questioning what Mr. Estrada’s capacity as a judge might be, those memos would be the obvious source for interpreting his jurisprudential philosophy, and precedent indicates that they, or a selection from among them if there are security or confidentiality questions still associated with a part of them, should be released.
I would never hope that a competent Republican who is attempting to do his duty by the country should be hurt politically by attempting to discharge the duties of his office. But you are making it increasingly clear that at least some Republicans are less interested in the welfare of their country than they are in the welfare of their party. I can only hope that Messrs. Bush, Rumsfeld, Powell, and Ms. Rice are not of that ilk.
minty green – I disagree.
(1) I am not sure that the claim is “privilege.” It is my understanding that the memos are being withheld as “confidential” and necessary for the functioning of the office. I have not read the White House privilege decisions that arose out of Whitewater, but I think they apply.
(2) I do not see why the memos could not have been subpoenaed if they were that important. At the very least, the question of privelege/confidentiality would then be put before a judge.
(3) december’s point was not about the niceties anyway; it was about propriety. That is the point the SGs’ letter speaks to, as well.
(4) If the honorable Senators cared so much about the content of the memos, they could have asked Estrada, in hearing or in followup written questions, about the arguments that he made on behalf of the government. Only two out of the nineteen members of the judiciary committee submitted written questions, and I am unaware of any claims that Estrada’s answers to those questions were less than forthcoming.
december-
Since you seem to love FNC so much, here’s a little something from the other side:
Perhaps now Hispanics will see what the Republican party really stands for.
And the Party of minorities will get even more Hispanic voters than they already have. I love it! 
**minty green, polycarp, leander, ** others if you know
I have a question:
What are the best arguments against Estrada? I have heard only the following:
(1) We do not know enough. (This is what most of the debate has been about.)
(2) Paul Bender said he was partisan.
(3) An anonymous law student applying for a clerkship said that Estrada seemed to “screen” applicants based on an ideological litmus test.
(4) Bush nominated him.
(5) He is not a “real” Hispanic.
I am asking quite frankly – have I missed something?
(I am not gearing up for a followup, by the way; I just want to be sure I understand the full debate, not the limited parts I hear here and there.)
I’m talking about attorney-client privilege, not executive privilege. Executive privilege would not apply because the memos were (presumably) never addressed to the president for decision-making purposes.
It is next to impossible to breach attorney-client privilege unless the documents sought demonstrate criminal activity.
Screw the SGs. Since Estrada refused to answer in anything other than platitudes, they are basically the only remaining source of information about how he thinks.
That’s not what we want to know about. The briefs and arguments are already public domain. What we want to know is what he personally thought about the law, not the position that he advocated on behalf of his clients.
bbonden - Number (1) is enough for me. I simply want to know more about this man’s judicial belief system and ideology. Where does he stand? (Obviously, the fact that Bush appointed him gives us some clue. And the fact that he refuses to come forward gives us another. But in the interest of fairness, I would simply just like to know.)
Now I have no doubt that others have their own reasons, perhaps some of those you listed. And sadly, neither Dems nor Repubs are above political manuvering for purely partisan reasons.
Yes, some Dems are probably using this issue simply to further their own agendas. Which sucks - and reflects poorly on the Democratic party.
But at the end of the day, I believe that we should know more about any judicial court appointee, regardless of race or who appointed him.
Full disclosure: I’m a liberal Democrat. But I believe that the courts should be above political ideology, not panderer to it.
So leander’s first paragraph also speaks for me.
The fact that the Republicans involved in this seem to be attempting to obfuscate instead of answering questions speaks to me that all is not right with this scenario – or perhaps is too far right! They were hardly this scrupulous about privilege in les affaires Whitewater and Lewinsky, But if the truth came out and I found that Estrada was another Anthony Kennedy, I’d be quite willing to give him my support as a judge.
I’m not so sure it’s that simple. The Solicitor General’s basic job description is to go to the SCOTUS and defend the laws passed by Congress from legal challenge. Yes, he’s in the executive branch, but in a very real way he is also an advocate for the legislature.
I’m also pretty damned discomforted by the notion that a later executive can waive privilege on documents generated in a prior administration. The potential for abuse is huge. Imagine it’s re-election time, so Bush waives privilege on Clinton’s Solicitor General’s papers and orders them released in an effort to find some extreme-left reasoning to tar the new candidate (“These are the kinds of nutbars Democratic presidents put in positions of power”). I’m much more comfortable with the Solicitor General’s client being seen as institutional and thus the privilege being effectively un-waivable.
This is not hypothetical. Estrada was in Clinton’s Solicitor General’s office. (Which BTW makes it unlikely that he’s a right wing nut case.) Many of the cases he brought to ther Supreme Court were on behalf of the Clinton administration.
That’s what makes this issue so delicious, politically. Liberal Democrats support the filibuster. The Democrats need to continue it, in order to keep their base happy. OTOH Republicans, are also energized by the filibuster. Independent voters may blame both parties equally. But, 41 million Hispanics will definitely blame the Democrats for resisting their guy and appreciate the Republicans for supporting their guy.
leander, yes the Democrats can respond by attacking the Republicans for their opposition to affirmative action. But, they were going to do that anyhow. The Estrada issue adds something new and powerful to the mix.
Also, in politics, the adage goes, when you’re defending, you’re losing.
december - the point, I think, is that Republicans (and you) are trying to turn race into a negative issue against Dems. I find this very ironic and hypocritical, as Dems have historically been a party which represents the minority.
I seriously doubt that anyone with 2 cents will be unable to see through the sophomoric and transparent attempt by Repubs to turn this into a racist issue. In fact, I have no doubt that this will seriously backfire, and that those 41 million Hispanics will see that Republicans are merely using them as a way to count more votes.