december, I really wish you (and other members of the Republican Party) would quit with this race-based bullshit.
If Hispanic groups back Estrada because he is Hispanic, then they are stupid. They should back him because he is a good candidate or they shouldn’t back him. Period. And opposition to Estrada should not be painted as opposition to the appointment of Hispanics to the bench.
Yes, I know that Democrats play this game with alarming frequency. That doesn’t make it valid in this case. Two wrongs do not make a right.
Yeah, but mightn’t it have a chilling effect on how the SG’s office operates? I mean, if you were in the SG’s office right now, and it happened that the administration waived privilege on the Estrada case, mightn’t that affect the way you prepare for your cases? The SG’s office is a fairly routine stepping stone to the federal bench, after all.
Say you wanted to kick around a radical argument among your colleagues on a pending case. You draft an internal memo with some basic research and arguments, and pass it around just to see what people think. I’d say that’s a good thing, wouldn’t you? Exploring all possible avenues of defense for your client, even if the argument ultimately proves to be weak and not part of the brief you file?
Now consider the possibility that you might one day be nominated to the bench. You know that the nominating administration would consider waiving privilege at Congress’ request. Mightn’t that color your drafting? Prevent you from kicking around a radical argument? I think a policy of waiving confidentiality would ultimately hurt the SG’s office.
Thank you most heartfeltly and sincerely for this post, Elvis. I’m confident we have disagreed in the past, and will probably disagree in future. But with this post you have earned my sincere respect (not that you didn’t have it in large measure before) as a decent, patriotic, and thoughtful American with whom I’m proud to share membership on this board. A brilliant piece of work!
That is precisely the point, december. Estrada may be so far to the right that he thinks Rush is a dangerous socialist, he may be so far to the left that he thinks Jesse Jackson should join the John Birch Society, or anywhere in between. But we don’t know. And, reverting to my idee fixée here, we don’t have a clue whether he’s the twin of Bork, Douglas, Brandeis, Sutherland, Scalia, O’Connor, Burger, Black, or Murphy in what he believes about the proper way to apply the Constitution.
It’s your evident contention that that makes no difference – he’s a Hispanic nominated by Bush, so all good Americans should rally behind him. I find it hard to believe that you are unable to grasp the idea that a lot of us think that knowing how he reads the Constitution and would apply it to cases before him is important, and that he should not be ratified for a Federal judgeship without having that knowledge?
It’s certainly your privilege to think so. And it’s the privilege of the rest of us to disagree, if we choose to do so.
Hello? Reality to december? Come in? What “high technical competence”? Where in the name of Tars Tarkas’s green gonads are you seeing evidence for “high technical competence” – as a judge. The point I’ve been trying to make for what, four pages now?, has been that we do not have evidence of his capacity as a judge. There are certain criteria one uses to evaluate the potential competence of a current non-judge nominated for a judgeship; thanks to White House stonewalling and the fact that he has apparently not written extensively on constitutional law, those criteria are not applicable. I won’t ask you to repeat again the evidence you’ve courteously provided me that show his undoubted competence as a lawyer – but how does that translate to “high technical competence” as a potential judge? Maybe this is the key to the rupture of communication between us – as an opinion question not subject to debate, answer me, what in the qualifications you’ve named leads you, as an unbiased observer, to be convinced of his capacity to be a scholarly and dispassionate interpreter of the Constitution and laws? If you can answer that question to the extent that you convince me of his competence, then I’ll be glad to switch sides and back your POV. But, frankly, I have not seen that evidence in that light. Open offer: convince me, and I’ll formally announce a switch in this thread and back what you say.
Re: confidentiality. I think it’s been made clear here already that there are two distinct senses of the word in use. A level of classifiedness in government regulations does not equal the legal-ethics responsibility incumbent on a lawyer to keep his client’s legal affairs from public knowledge to the extent possible. Two related meanings of a word with different applications, much like a person may belong to the NAACP and oppose discrimination, and also subscribe to a magazine that claims to be for “gentlemen with discriminating tastes,” without losing integrity. And it’s worth reiterating that that privilege is incumbent on the lawyer, not on the client – the client may release such matters from confidentiality at his own discretion; it’s the lawyer who’s bound by it. It’s the DOJ, not Estrada, at fault in failing to support his candidacy by releasing those memoes, or some of them.
Except that the officials aren’t using it. Why, if it’s “entirely appropriate”, aren’t they using it? I posit that it’s because the word “confidential” MEANS SOMETHING in a government context and in the all quotes and transcripts I’ve seen it HAS NOT BEEN USED because it would be improper to use in regards to these documents. It’s a common word and if it described the situation I would expect to see it used by those closest to the situation.
A third request is now going out. If you, Dewey, can find a place where SG office officials(heck, at this point I’d probably settle for administration officials) have used the word “confidential” in regards to these documents then I’ll withdraw my objection and offer an apology.
The reason I objected to the change of adjectives in the first place is because it was quite clear december was adding spin to the story by substituting the stronger term “confidential” for the more lenient “privileged”(although, ironically, “privileged” carrys a lot of weight as a legal term). Confidential means “I CAN’T tell you.” It invokes the spectre of security and this is simply NOT appropriate. There is no reason to believe those documents contain information it would be a risk to security if they were given to the senators(who handle National security issues on a daily basis).**
Perhaps, I’m only responsible for justifying criticism I level, and I’m not saying it was his fault these documents were denied to the senators. It was the client’s(the administration’s) choice. In fact, as far as I can tell, he himself would turn these over if he weren’t bound by the “duty of confidence” you describe. **
I agree, and I think if the administration hadn’t adopted this stance in response to an inquiry, if they had adopted it during some lull period and were simply enforcing it now, then the critics wouldn’t have a leg to stand on. As it happens this stance was taken in response to an inquiry and that raises questions about the motivation and if this stance is being used as some form of interference with the investigation and to hide something instead of simply a matter of good policy.
Some did, some didn’t. Some undoubtedly resented those people for having opportunities they were not afforded. Your continual assertions that this is a swing issue for “41 million Hispanics” are out of line. This could be a swing issue for a significant number, but as of now the issue isn’t as cut-and-dried as you make it out to be.
On Preview: I also wish you’d stop with the “race” issue. Like Dewey I find it offensive when it comes from either side of the aisle.**
Bullshit. I’m an engineer. If anyone knows the danger of shoddy use of language it’s engineers. If you are going to talk about a situation you have no personal knowledge of then you are an utter fool if you go changing the language used by those who DO know what they’re talking about. It’s inaccurate, and in your case it’s inaccuracy for a dishonest purpose. Why should a person have to be “a liberal” to call someone on innacuracy, especially dishonest innacuracy? Why should I sit back and let you spin the statements of the officials, regardless of my political affiliation?
By the way, I don’t have a political affiliation. I judge each issue on its merits, not the party promoting it.
I do think that I have a solution to the problems raised in two recent threads.
Let Bush appoint Miguel Estrada to a federal judgeship if he so chooses. Then define a judicial district consisting of the Northwest Angle and Point Roberts, designate Estrada as judge for that district, and then give them to Canada!
I realize that you have an ax to grind here, but this non-stop idiocy about confidentiality is beyond silly and does no credit for your cause, such as it is. But, special for you, here’s a cite for you:
And now, let’s see how “much of a retraction your pride will allow”.
I can only reiterate what I’ve said before: on this point you’re simply wrong. Yes, “confidentiality” has a certain meaning in government circles, but it also has a certain meaning in legal circles. A lawyer owes a duty of confidentility to his client; that duty is similar to, but not the same as, the attorney-client privilege. The SG’s office is an office of lawyers, lawyers who are bound to follow the canons of ethics in representing their client. That includes keeping materials related to their representation of the client confidential.
This is abundantly clear from context. No one has ever, even once, suggested that the memos Estrada wrote at while in the SG’s office had anything to do with national security; no one has ever, even once, suggested that revealing those memos to the Senate would constitute a security risk. Your distinction is utterly unimportant because no one is confused about the context in which the word is being used.
I assure you, if you were to ask a lawyer at the SG’s office what arguments he was considering for his next Supreme Court argument, he would reply “I’m sorry, that information is confidential.” And he would mean it in the lawyer’s duty sense, not the national-security sense. And his reply would be entirely appropriate.
And on preview, I see IzzyR’s gone Googling.**
This is an utterly silly stance unless you can show a previous instance where such documents have been requested by Congress. Obviously, the administration would have no need to refuse to waive confidentiality unless a request for a waiver had already been made.
That knowledge would make little difference in how he does his job. A judge is there to interpret the law, not to make law. Federalist Society members presumably avoid legislating from the bench to a greater-than-average degree.
However, we have yet to see any evidence that any Senator asked him this question. We sure know that Schumer didn’t ask it in writing after Estrada’s oral tesitimony. It doesn’t seem fair to vote against a nominee for not answering a question he was never asked.
Sure you have. I gave you a list of things that indicated his competence as a judge. You never responded, so I assumed you had accepted my point. Since you do not agree, I would invite you to go back and respond to that post.
It’s nobody’s faulr. All 7 living ex-SG’s say these memos should not be released. According to them, the DOJ would be at fault if they did release them.
Incidentally, one of those ex-SG’s, Drew Days, was a high school classmate. Days is very liberal. His father was an NAACP lawyer. Days testified against Clarence Thomas’s confirmation.
DCU, I sympathize with your repugnance at the “race-based bullshit.” Unfortunately, it’s part of the political impact of this controversy. The political impact is the main thing I intended this thread to address.
I do. I don’t think we should sacrifice an effective SG office in favor of the judicial nomination process.
N.B.: this does not mean the Senate should approve the nomination. It’s quite legitimate to say “I’m sorry, we just don’t have enough information about your views” and refuse to give advise and consent. But I also think that the administration’s refusal to waive privilege is entirely proper, and I think it is staggeringly inappropriate for the Senate to have requested them in the first place.
Actually every point I’ve raised about the term “confidential” is perfectly valid and I did, several times, acknowledge that it may not apply to the SG’s office, or these documents in particular. My original request for a cite was ignored and that cheesed me off a bit so I got a little sharper. Now it seems the word “confidential”, while not carrying the weight it normally does in reference to government documents(the very word forces security clearance in most cases), could fairly be applied to these documents. I withdraw my objection to december’s use of the term on technical grounds.
I could swear it was already established that these types of requests HAVE been made before. From the cite I gave on page 1
I don’t have any more details(which nominees, when, etc), but this didn’t seem like the outrageous request you’re saying it is.
Did you really type that with a straight face? You do know that previous posts stay available for comparison to present posts, don’t you? Such as this one:
What you did was accuse december of deliberately changing the language for dishonest purposes. It took a fraction of a second for a google search on “estrada” “confidential” to produce zillions of cites, which, had you bothered, would have showed you the term is very commonly used by news organizations, government officials and the formers SGs with regard to this exact matter.
OK. But you also promised to apologize.
Regarding the issue of precedent in confidentiality, it is odd that you would rely on an opinion piece by a guy with an agenda, in light of your previously expressed disdain for quoting Op-Ed pieces, when december is doing it.
According to this source, the practice is highly unusual but not unprecedented, and has historically been resolved by letting some staffers view some of the relevant documents.
Umm, Izzy. Almost all the cites on an issue like this will come from op-ed pieces. Certainly Scientific American isn’t going to be running a piece on it. Points of fact may be embedded in an op-ed piece. The bias of the author does not change the fact. Citing op-ed pieces for the speculation they contain is distasteful to me and should carry little weight in a debate(which is what I object to for some of december’s cites). Note that I did not say my cite was authoritive on the author’s claim that “Estrada, Honduran born and raised, did not identify with the Latino community and because of the privileged background of his family in Honduras, did not relate to the issues of working class Latinos.” Such a claim is clearly opinion and carries very little weight. I have used that cite for the facts contained about Estrada’s history, the(now verified) point about the precedent for release of Justice Department memos, and to support my assertion that not all Latinos will believe the democrats are wrong to oppose the nomination.
I have no reason to doubt the factual claims of the piece. As you have further demonstrated, there IS precedent for request for these types of documents to be used during a senate investigation to fulfil their duties to advise and consent. This throws out the defense of “they didn’t have a policy against releasing this info because it had never come up” which Dewey used.
Still, the senate isn’t bound by precedent, neither is the administration. They can release documents in previous cases and refuse to release them now, their perrogative. It is also the democratic senator’s perrogative to vote against, or filibuster, Estrada.
I still maintain that december shifted to the term “confidential” for reasons of spin. My apology was for saying he was using the incorrect language in an attempt to achieve even more spin than could be allowed by appropriate terms. I HAD searched through cites given in the debate so far(which included transcripts of senate proceedings) for uses of the term “confidential” in regards to these documents. The first time it appeared was when december used it. Being a believer in “you write it, you support it” I asked him for a cite. A cite has been provided and I am satisfied.
I like Izzy’s last source there, which contains the following nugget:
I love it. Now we have precedent from this very administration opening up the files of its lawyers to Senate scrutiny in the confirmation process. Boy, Al Gonzales is sure screwed for that Supreme Court gig now.
I don’t know why that would be. There are many news sources covering this matter.
I agree, if the source is known to be a reputable one.
Actually, I don’t think so. It is kind of gray. It would appear to me that the Demos are asking for the documents to be turned over to the Senate. The article that I linked to suggests that a more limited form of access (allowing staffers to view them) was granted, the result of negotiations. Your source says “Justice Department has released attorney memos in the past to ease nominations”, which appears to be a misrepresentation by a biased author. By contrast, this cite from the WSJ Op-Ed suggests the opposite, saying
So you can spin the same thing both ways.
It’s a good question as to whether the Democrats would be satisfied with such an arrangement in this case (assuming the WH would go along). Personally I suspect that the Democrats want the memos for ammunition more than for genuine evidence. If they got a brief look at them, and themselves were bound to keep it confidential, it would not help them that much PR-wise. But maybe it will work out this way in the end.
Here’s what you said:
And now, with a cite having been provided, you not only refuse to apologize but reiterate that regardless of who else is using the term and how legitimate it is, you still maintain that december used it for spin. Shameful, IMHO.
Another interesting point, I think, is that the U.S. Court of Appeals for D.C. is now evenly split between Dems and Repubs. I have a feeling that any nomination, regardless of race, would be receiving an enormous amount of scrutiny for this position. The fact that this is considered a stepping-stone to the Supreme Court must also concern folks. (Of course, by that time we will have clear evidence of Estrada’s stance based on his experience on the bench - if he is finally appointed, that is.)
I also believe that after the last election many Dems were concerned that Bush would try to pack the courts with conservatives for the next few years. The filibuster is really a last resort - and one I doubt anyone enjoys using, considering how badly it reflects on the party - to prevent Repubs from steamrolling the system with right-wing judges.
Well, it looks like this week will be an interesting one for the Senate…
This seems to set a very high bar, if not outright create a catch-22. I’d never heard of the LatinoLA site before this week(thus I have no info on their reputation). Does this mean I can’t trust facts they reference in an op-ed piece? Certainly they’re open to examination and if someone can prove the facts are not what the op-ed presents them as then we’ll discredit them. Do you have a fact-based criticism of my cite? “letting some staffers view some of the relevant documents”(your claim) versus “released attorney memos in the past to ease nominations”(my cite’s claim) seems pretty much like splitting hairs of the most anal variety. In both cases the fundamental issue, access to the information in the documents being made available to senators for confirmation debates, is the same.
Perhaps. I’ve acknowledged this is a game, I don’t think very many people are saying otherwise. Still that doesn’t mean one side is playing dirty by requesting access(be it through staffer summaries or the actual paper) to these documents. Your arguement seems to hinge on your assumption that these documents will be used to smear Estrada in the public eye. I’ve seen nothing in my readings of articles/transcripts that indicates the senators want to make these documents, or any part of them, public. What evidence do you have that they’re looking to use them for “PR” value? **
Oh my! Seppuku is clearly my only option! It is well known that december NEVER spins his sources. He is a paragon of truth and fair reporting! Oh the shame of having besmirched such a noble character! I can’t bear it!
I could swear it was already established that these types of requests HAVE been made before. From the 