Stay Out of Their Briefs!

One of the looming battles over Supreme Court nominee John Roberts is expected to be over briefs he wrote while working for the first Bush administration:

(MSNBC) At the moment — unless there is some smoking gun hidden in his years of private law practice — the only avenue of attack for Democrats to block his confirmation would seem to be an attempt to get the memos he wrote while in the solicitor general’s office from 1989 to 1992.

Democrats on the Judiciary Committee can argue that they need to know more about how Roberts thinks and therefore they must see those memos from the late 1980s.

The Bush administration will refuse to turn over the memos, saying the confidentiality of solicitor general’s office in preparing arguments must be held sacrosanct.

This is the very same issue Democrats used to justify their filibuster of Bush appeals court nominee Miguel Estrada in 2003...

The outside liberal advocacy groups were quick to issue statements expressing worry about Roberts: People for the American Way brought up the legal brief Roberts prepared while serving in the solicitor general's office arguing a case called Rust v. Sullivan.

The brief said that the president and other members of the Bush I administration “continue to believe that Roe was wrongly decided and should be overruled” and that the Court’s ruling that a woman has a right to get an abortion has “no support in the text, structure or history of the Constitution.”

Besides the fact that this statement is true, using the words of an attorney's briefs or memos against him is simply ridiculous. Briefs and memos are not written to express the personal views of an attorney, but to serve the client. A brief can only promote the client’s position. A memo is more of an intellectual exercise. At its most thorough, a memo would present and analyze every side of every relevant issue in a case. Everyone could find something to hate in an honest memo.

As for the Solicitor General’s office, every living former Solicitor General, whether Democrat or Republican, opposes releasing internal memos. I’m inclined to give some credence to consensus like that.

We don't know what Judge Roberts actually believes about Roe v. Wade (which regardless is no longer good law). He shouldn't be asked about it and he shouldn't answer. Beyond that, the one statement that we have so far is irrelevant. If he wasn't willing to state the position of his client (the first Bush administration) in his brief, he should have been fired.

For a list of questions that Roberts should NOT answer, check out Schumer's Questions for Roberts. Virtually none of these questions should be answered, except for Section 12:

• Do you describe yourself as falling into any particular school of judicial philosophy?
  
• What is your view of “strict constructionism”?
  
• What is your view of the notion of “original intent”? “Original meaning”?
  
• How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?

The first three will allow answers that will be academic enough to prevent the kind of pretentious vote-counting Schumer is aiming for. The fourth is easy - The Thirteenth Amendment, The Fourteenth Amendment, and The Fifteenth Amendment.

Finally, Kathryn Jean Lopez gives us some interesting nomination history:

But it doesn't have to be this way. When President Bill Clinton nominated Ruth Bader Ginsburg to the Supreme Court, she was confirmed four weeks after the initial announcement, after a relatively easy confirmation hearing. And it could have been brutal. Her views are extremist, unlike so many of President Bush's various federal-court nominees who've been stuck with the same e-word over the past four-plus years. A former American Civil Liberties Union attorney, Ginsburg has advocated replacing Mother's and Father's Days with "Parents' Day" to put an end to traditional gender-role rigidity. She also favored lowering the age of consent for statutory rape to 12 and opposed the Girl Scouts and Boy Scouts groups because they, again, "perpetuate stereotyped sex roles."

She's also used a false analogy with India to call for race quotas in Congress. I guess Clinton didn't use his nominees to "unite the country" either.