News Intelligence Analysis
From the Progress Report
On the Supreme Court Battle
A Nomination, Not a Coronation
August 18, 2005
by Judd Legum, Faiz Shakir, Nico
Pitney and Christy Harvey
The White House, right-wing interest groups
and the Washington
Post want you to believe that the confirmation of John Roberts
as Supreme Court justice is signed, sealed and delivered. We
want you to know the facts. Several pieces of information have
emerged about Roberts over the last few days that demand close
attention by the Senate and the public. First, we learned yesterday
that Roberts "was interviewing for a possible Supreme Court
nomination with top Bush administration officials at
the same time he was presiding over a terrorism case of significant
importance to President Bush." According to several
prominent legal ethicists, this was a significant conflict of
interest that should
have prompted Roberts to disqualify himself from the case.
Second, a folder containing documents about Roberts' work on
affirmative action in the Reagan administration mysteriously
disappeared from the National Archives after it was reviewed
by two lawyers from the White House and the Justice Department,
prompting an official investigation. Today, 38,000
more documents relating to Roberts' tenure in the government
will be released. If Roberts is really the brilliant,
ethical,
reasonable,
grass-mowing,
good-looking,
ice-cream-eating
guy his staunch supporters say he is, there shouldn't be any
problem reviewing his record thoroughly.
INTERVIEWING FOR A JOB WITH LITIGANTS:
John Roberts, as federal judge on the U.S. Court of Appeals for
the D.C. Circuit, sat on a panel that considered the legality
of "trials of terrorist suspects held at Guantanamo Bay,
Cuba." Roberts met with Attorney General Alberto Gonzales
who represented the administration in the case to interview
for the job of Supreme Court justice on April 1, "six
days before hearing oral arguments." One month later,
with the case still in progress, "Roberts was summoned to
the White House for a meeting with Vice President Cheney, White
House Chief of Staff Andrew H. Card Jr. and Deputy Chief of Staff
Karl Rove, among others." On July 15, the same day Roberts
released his ruling siding with the administration, "Bush
conducted the final face-to-face interview."
LEGAL ETHICISTS CITE CONFLICT OF INTEREST:
Stephen Gillers, David J. Luban, and Steven Lubet three respected
law professors argue, "Given the case's importance, then,
when Gonzales interviewed Roberts for a possible Supreme Court
seat on April 1, the
judge should have withdrawn" from the case. The reason
is that "[f]ederal law deems public trust in the courts
so critical that it requires judges to step aside if their 'impartiality
might reasonably be questioned,' even if the judge is completely
impartial as a matter of fact." The professors note, "the
judge may have been influenced even in ways that he may not consciously
recognize."
ROBERTS CAN STILL DO THE RIGHT THING:
Although this isn't reflected in most reporting, Roberts' vote
in the Guantanamo case was critical. Gillers et. al explain:
"Although all three judges reached the same bottom line
in the case, they were divided on whether the Geneva Conventions grant basic human rights
to prisoners like Hamdan who don't qualify for other Geneva protections."
The professors urge Roberts to "withdraw his vote retroactively,"
which wouldn't have an effect on the specific case but would
"at least eliminate the precedential effect of the opinion
on whether the Geneva Conventions grant minimum human rights"
to the type of detainee in question.
NOW THE WHITE HOUSE SEES ROBERTS' FILE,
NOW YOU DON'T: John Roberts has a checkered history when
it comes to civil rights, including making less
than complementary remarks about Martin Luther King Jr.'s
widow. Yesterday, news broke that a file containing all the papers
relating to Roberts' work on affirmative action in the 1980s
has gone
missing from the Ronald Reagan Presidential Library after
it was reviewed by two lawyers from the White House and the Justice
Department. It's a strange
story: archivists say they believe the lawyers brought back
the file, but no one at the library actually remembers it being
returned. Also, the White House and the Justice Department refuse
to name the lawyers in question. (If these lawyers didn't
do anything wrong, why can't we know who they were? If they returned
the documents, why don't they go on the record and say so?) The
National Archives has since launched a formal
investigation into the missing documents' whereabouts.
MORE DOCUMENTS WITHHELD: The administration
released two batches of documents this week, but each time, it
also withheld hundreds of pages
for unclear reasons. Citing exemptions
to the federal Freedom
of Information Act (FOIA), the Reagan Library and the National
Archives withheld almost 500 pages on Monday, and almost 2,000
pages today. Senators Kennedy and Leahy
both released statements lambasting the partial release. Said
Kennedy: "There is no privilege, there is no rule, and
there is no logic that would bar us from getting these documents,
and we need them to determine on behalf of the American people
whether this nominee should be placed on the nation's highest
court."
WHAT PRIVACY CONCERNS?: The administration
has stated over and over again that John Roberts is a man who
keeps his private life separate from his public roles: because
he's such a lawyer's lawyer, they say, we shouldn't infer anything
about John Roberts' personal views from his public
records. Scott McClellan summed
it up best, when asked about the Roberts memos: "I think
there's a distinction between advocating on behalf of a client
and someone's personal views." And yet, the most heavily
cited FOIA exemption for withholding documents is
that they would violate Roberts' privacy. This doesn't quite
add up, and the White House owes us an explanation for why these
documents deserve the privacy exemption.
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