Thursday, August 11, 2005

No Questions Asked 

1.) In an interesting column on changing judicial interpretations of the commerce clause, John Dean discusses the so-called "Ginsburg rule," which right-wingers have recently invoked in arguing that Supreme Court nominee John Roberts should not be compelled to answer questions about specific issues. The only problem is, the Ginsburg rule has no basis in law or the code of judicial conduct. Joe Biden pulled it out of his ass:
in 1993, when Senator Joseph Biden of Delaware chaired confirmation hearings for Supreme Court nominee Ruth Bader Ginsburg, Biden instructed his committee colleagues not to ask questions about "how [Judge Ginsburg] will decide any specific case that may come before her."

Judge Ginsburg - who was then on the DC Circuit Court of Appeals, just as Judge Roberts is today -- refused to answer a number of questions about matters she believed would come before her as a Supreme Court Justice. She was confirmed by a vote of 93 to 3 . . . .

Senator Biden based his position on, and Judge Ginsburg found her shelter in, Canon 5 of the American Bar Association's Model Code For Judicial Conduct. Canon 5(d)(i) states: A candidate for a judicial office (a "Candidate" is defined as a person seeking selection for judicial appointment) shall not: with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.

As a close reading of this Canon shows, it only applies to "pledges, promises, or commitments" regarding "cases, controversies, or issues that are likely to come before the court." Thus, on its face, it does not preclude a nominee from making broad statements about the law, so long as they are not "pledges, promises, or commitments."

A narrower interpretation that would have this preclusive effect has been added in the "Commentary," but it is advisory only - which is telling. The ABA's commentary states that this Canon "prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court." This prohibition on statements, however, is broader than the Canon itself. (The commentary also notes that Canon 3 precludes sitting judges from discussing matters before them.)

The Ginsburg Rule, then, is binding on no one. Supreme Court confirmation proceedings are purely political, and the chairman can run his committee much as he sees fit.

Accordingly - and rightly so -- in submitting specific questions to Judge Roberts, Chairman Specter has made clear that he believes the nominee must respond. Judge Ginsburg was able to refuse to answer questions not because of Canon 5, but rather because the Senate Judiciary Committee permitted her to do so. Had a majority insisted she respond, she would have had to respond, or risk not having her nomination reported out of the committee.

If Judge Roberts fails to respond to Chairman Specter's questions, he will be playing a dangerous game of stonewalling. There is nothing in the ABA Canons that precludes him from explaining his Commerce Clause jurisprudence.

Thus, if Roberts thinks the U.S. Congress is relatively powerless under the Commerce Clause provision, he is free to say so - and it is only fair that he should. If that is his thinking, then the U.S. Senate can decide if it wants to diminish its powers by placing Judge Roberts on the High Court.

2.) There are times at which we think George Bush really must be a genius. Okay, okay, we exaggerate -- maybe an idiot savant?
A little-noticed order issued by President Bush almost four years ago gives White House lawyers the right to block the release of memos written by Supreme Court nominee John G. Roberts Jr. when he worked for President Reagan.

The order, signed by Bush in November 2001, said the "incumbent president" had the right to approve the release of papers from the presidential libraries of his father, George H.W. Bush, and Ronald Reagan.

It set off a furor at the time among historians, archivists and librarians. They said it all but repealed the Presidential Records Act, a 1978 law that decreed a president's records were public property, not the private property of the former president. Under this law, a former president's papers were to be opened to the public 12 years after he left office. Exceptions could be made for national security reasons.

Bush's executive order added a new check. It said the "incumbent president may assert any constitutionally based privilege" after the 12 years had lapsed to block the release of files. Included among these many privileges were "records that reflect . . . legal advice or legal work."

This week, several Democrats on the Senate Judiciary Committee questioned whether White House lawyers were using this authority to delay the release of memos written by Roberts in the mid-1980s, when he was a White House lawyer.
With a single stroke of the pen Georgie conceals his old man's participation in Iran-Contra AND exempts future Supreme Court nominees from having to divulge their opinions on abortion, civil rights and other messy issues to those busybodies in Congress. Now that's efficiency.

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