We shall see. Clinton had a chance to appoint the first Hispanic to the Supreme Court, but he didn’t do so. Now, Bush wants to elevate a Hispanic judge, and the Democrats are fighting him with everything they have. And, one of their publicly stated reasons is to keep him from getting onto the Supreme Court.
I think many, many Hispanics will be paying attention, especially if the Repubicans make an effort to publicize the battle in Hispanic areas and Hispanic media. I can assure you that when Louis Brandeis, the first Jewish SC Justice, was appointed, Jews were paying attention. They even named a university after him.
So, no retraction on the “confidential” label you applied to the memos on your own authority and now you speak for 41 million Hispanics. Do you ever stop to think before you post?
He doesn’t need to retract anything. The memos are attorney work-product, and are thus subject to the lawyer’s duty of confidentiality to his client.
It should be noted that this duty is related to, but a little different from, the attorney-client privilege and work-product privilege. Those two privileges are rules of evidence and discovery – they control in litigation. A document or conversation subject to either privilege cannot be discovered by the other side, nor can it be entered into evidence (unless the privilege is waived).
What we are faced with here is a lawyer’s duty of confidentiality. This is an ethical duty owed by the lawyer to his client at all times, 24/7/365. Failure to keep information related to a client’s legal representation confidential is a breach of professional ethics that could lead to disbarment.
Asking Estrada to reveal those memos without a waiver is essentially asking him to ignore his professional responsibilities to his client. Indeed, if he did turn over the memos without a waiver, that act alone IMO would disqualify him from the bench.
Oh, almost forgot: in spite of the distinction, sometimes lawyers will use the word “privileged” informally to encompass the duty of confidentiality. I note this so you aren’t confused when you see lawyers in this thread referring to “privilege” when they really mean “duty of confidentiality”
Gosh, who knew those “41 million Hispanics” would be incapable of evaluating a nominee’s politics or seeing anything other than his ethnicity? Sheep always make the best voters, don’t they?
Brandeis was nominated by Wilson, a Democrat if you’re keeping score, and you clearly are to the exclusion of all other considerations, december. Which is the problem here. You’re consistently referring to the party you do not pay allegiance to as “the enemy”, not as fellow Americans with whom you happen to disagree. Your ultimate purpose here isn’t the betterment of the country, or its judicial system; it’s simply to put one over on those damn Democrats by any means necessary.
Fortunately, most of us, and even most Senators, are bigger persons than that. Unfortunately, some are not, and you do serve a purpose here by reminding us of that sad fact.
Estrada was not asked to hand over the memos; the White House was asked to do so. It declined, even though it is the holder of the privilege and may waive the confidentiality whenever it chooses to do so.
Incidentally, there’s some decent discussion of executive privilege (not attorney-client privilege) for an ex-president in Nixon v. Administrator of General Services, 433 U.S. 425, 446-56 (1977).
Something tells me that you are not a member of a minority group, minty. Minorities pay attention to successful members of their group. It’s a big deal to the group involved when well known people are Jews, blacks, Japanese-Americans, gays or what have you.
As far as seeing anything other than Estrada’s ethnicity, I think Hispanics see how qualified he is. The idea of qualified minorities being rejected because of their ethnicity has a lot of resonance. The old song goes, “If you’re white. you’re right/If you’re brown, stick around/But if you’re black, get back, get back, get back.” I suspect every minority job-seeker has worried some about whether his background will hamper him.
If Estrada were known to be ultra-conservative, his politics might work against him. But, nobody knows Estrada’s politics. I do know that he was nominated by Bush, he worked in the Clinton Administration, he’s a member of the Federalist Society, he contributed to Ann Coulter’s book, and he did pro bono work for someone who was at risk of the death penalty. You can make up any guess you like from these snippets, but in fact none of us really knows. If you believe he’s ultra-comservative, I’d be interested in knowing why.
Elvis, geting more Republican appointees will lead to the betterment of the country and its judicial system IMHO. And, certainly getting a judge of such high technical competence is good for the judicial system.
The Democrats managed to stall a bunch of appellate judges during 2001- 02, and they lost their Senate majority. If the Dems succeed in filibustering Estrada now, they might rue their victory. It could cost them enough Hispanic support so that when Estrada is reappoined in 2005, the Dems might not even have the 41 Senators necessary to mount a veto.
Excellent, then hopefully you can do what december apparently chose not to and provide a cite from a SG official using the word “confidential” in regards to these memos. A direct quote, if you please. The word “confidential” is not just language when used in a legal context, especially by government officials. The Department of Defense has a document security scale that is widely used within the public sector. In a nutshell there are three levels, “Top Secret”, “Secret”, and “Confidential”. I do not know if the SG office uses it, but I would be surprised if they don’t. Here is a document which describes the security clearance needed to access certain documents depending on their security level classification.
Two points.
The word “confidential” is not to be thrown around lightly. It means something, and it means something important. If the claim is “confidential” then the memos will have that word, in large, red letters, stamped across the top and bottom of every single page.(in an interesting twist, security clearances are extremely difficult to get if you’re not a native US citizen. The government contract work I’ve had exposure to was dealing with “sensitive but unclassified” data and my co-workers who were immigrants were flat out told they would not be eligible to work for this project because the security clearance would not be granted unless you were native-born. Obviously they can make exceptions and let some foriegn-born persons have such clearance, but it is pretty rare, and I would imagine in a post-9/11 world it’s even more rare. In other words, I find it highly unlikely that these documents actually ARE “confidential”. Privilege is a different matter entirely and its nuances are being handled by minty and Dewey.)
If the claim can be proved, and I can’t say the documents are NOT truly confidential(I’ve never seen them myself) this is still not necessarially a barrier to allowing the senate to see them. These people are SENATORS! They work on TREATIES! They HAVE SECURITY CLEARANCE FERCHRISSAKE!
**
It has been my impression(without a transcript we can’t be certain, but I’ve seen some good evidence that this did occur) that the questions WERE asked, but Estrada refused to answer. Can I ask you if you would take the trouble to submit a written form of a question you had asked verbally and had evaded? What would make you believe the question written on paper instead of asked verbally would get past a nominee’s attempts at evasion? Moreover, if a person dodged my questions during an interview I’d certainly feel justified in dropping direct questioning alltogether. It’s pretty clear that I’m dealing with someone trying to distort my investigation so I’d be a fool to continue trying to get answers from what will almost certainly be an innacurate source.
Nope, if a person weasels or evades direct questions I don’t ask them any more questions. I look for other information sources, ones this person doesn’t have direct control over. Documents he can’t modify in response to my inquiry would work just fine.
Enjoy,
Steven
On preview: Dewey, see my point about the meaning of the word “confidential” when referring to government documents in general. If the SG office doesn’t use the DoD standard(which has been adopted by the majority of governmental offices) for document security then it’s not as applicable, but it’s still not december’s perrogative to change adjectives when referring to these memos. “Confidential” is emphatically NOT the equivelant of “priviledged” in a majority of situations.
I also don’t see how the “duty of confidentiality” applies because it is NOT Estrada who is being asked for these documents. The senators are NOT asking him to breach this duty. These documents are being requested from the Administration to aid in the investigation of the senate.
I was merely using English, where the first definition of “confidential” is “1. Done or communicated in confidence; secret.” I didn’t answer your question because another poster had already indicated that legal advice in the SG’s office is communicated in confidence. Of course, one can debate what level of confidence is appropriate or necessary.
As you say, “confidential” also has a specific meaning with regard to security, “4. Containing information, the unauthorized disclosure of which poses a threat to national security.” I didn’t intend that meaning.
The nomination of Clarence Thomas was also treated with unanimous acclaim among the African-American community. I clearly recall all those thundering rallies, speeches, warmly-supportive editorials, and denunciations of those few malcontents who insisted he’d actually set back the cause that Thurgood Marshall, whose seat he had taken, had fought for.
Indeed they do. Here’s what a latino community forum in LA has to say about Mr Estrada.
They’re taking notice of him alright, but it seems they’re looking beyond the skin to determine if he’d be a good representative of their interests. Given his extremely uncommon background I find it hard to believe the average Hispanic will feel he is “one of us”. Or are you counting on them not looking beyond skin tone?
Enjoy,
Steven
On Preveiw: december: I guess that’s as much as a retraction as your pride will allow. Still in the future you could show wisdom by not modifying adjectives used by your sources(“privileged” versus “confidential” in this case). Sometimes those adjectives make a difference. I’m deeply sorry this method of honest reporting will limit your ability to put additional spin on your sources. Feel free to disregard this advice and continue to attempt to distort the issue if you wish.
The Solicitor General’s office is essentially a law firm dedicated to defending the laws passed by Congress from legal attack. Its papers are confidential, in much the same way as a private law firm’s documents are confidential. And, as noted, “confidential,” rather than “privilege” is actually a more precise term for what we’re talking about: the latter is a rule of evidence, the former an ethical duty owed to the client.
In short, the term “confidential” is entirely appropriate in this context; everyone understands that it is referring to the lawyer’s duty of confidentiality to his client.**
Maybe I’m wrong, but a lot of that criticism seems to be directed at Estrada himself.
In any event, for reasons I noted earlier, allowing a later administration to waive privilege for work done for a prior administration has some potentially ugly consequences. A policy of not waiving confidentiality, period, is probably a good one.
Yes, some latino groups are opposing Estada. This group especially resents his passing the SAT2 in English, since they don’t even know the difference between “infer” and “imply.”
Try these comparisons: Did poor, immigrant Jews with no college education (like my father) look up to Einstein, who attended Polytechnic Institute? Did poor blacks with a high school education look up to Thurgood Marshall, who attended law school? Did lower middle class Irish-Americans think well of millionaire JFK?
It was not a retraction. It was a subtle way of pointing out a mis-reading on your part. Note that when “Confidential” is used in the sense of national security, it’s often capitalized. Also, the SG’s office has nothing to do with national security, so why assume that “confidential” was being used in that sense? Only a liberal would believe that one needs to apologize for using plain English.
Just want to clarify, however, that the SG is very much a part of the executive branch, whose job it is to administer and enforce the laws passed by Congress. As a practical matter, however, there is a great deal of discretion in the enforcement of those laws. The executive branch and the SG need not defend every law in every case (the stupid Miranda-override statute, which was resoundingly ignored for three decades, is an excellent example), and is free to promote any interpretation of the law that it prefers. Knowing how those decisions were reached would tell an awful lot about the person who made them.
minty