Tuesday, June 14, 2005

Partisans and privilege

You know, I never used to wonder about the federal judiciary and how the justices got into those positions. Maybe ignorance is bliss. Because the more I learn, the more uncomfortable I become, both about the professionally incestuous nature of the relationship between the Bush administration and a number of these nominees, and because the question of privilege keeps coming up.

Take the case of Brett Kavanaugh, a nominee to the DC Circuit, one of the two most powerful in the country. As Dana Milbank of the Washington Post puts it, "As a lawyer working for Kenneth Starr during the Whitewater investigation, he was devoted to restricting the powers of the president [by demanding access to documents]. Now, as a lawyer in the Bush White House, he is devoted to expanding the chief executive's powers." The battle over executive (presidential) privilege is already an issue for the Bush (43) presidency (see my earlier post, "The effect of these investigations) ; almost immediately upon entering office in his first term, Bush had Kavanaugh (now working for the administration) draft an executive order further restricting access to such presidential records, but deferring to former presidents and their families. The President Records Act, which he sought to modify, was a product of--you guessed it--the Nixon debacle.

The trigger for Bush's directive? According to the National Security Archives, "[Bush] was notified of a scheduled release of Reagan presidential records (68,000 pages of records). His legal counsel requested two successive 90-day extensions of time to review the records prior to their release followed by a third request for an indefinite extension of time so that the White House could evaluate the legal framework and process that would govern release of the records. This was followed on November 1, 2001 with the issuance of Executive Order (E.O. 13,233) that gives the White House and former presidents uncontrolled discretion [my emphasis] in deciding whether to deny the release of documents requested by journalists and scholars." For the first time, Vice Presidents are also included. Among the documents ultimately withheld:
--a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, "Talking Points on Iran/Contra Affairs"
--a series of memos dated 22 November and 1 December 1988 for the President entitled, "Pardon for Oliver North, John Poindexter, and Joseph Fernandez"
--a two-page memo for the President from the Attorney General, "Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987"

Ironically, it was not politicians but primarily historians (including the Natl Security Archives) who got up in arms, filing suit in November 2001. The case was ultimately dismissed in March 2004--mistakenly, according again to the same NSA doc I link to above: "A federal judge's dismissal last month of a landmark open government case was based on two factual misconceptions and deserves re-opening". I have not seen any docs online noting any new action.

Eeeenteresting. Back to Kavanaugh: how does one defend arguing against presidential privilege in the one case, and not only buttressing but significantly expanding it in another? Two possiblilities, in Milbank's article: either it's the difference between a criminal inquiry in Whitewater (which trumps privilege) and a civil one (which doesn't), or it's because he's just a really good lawyer, acting in the interests of his client (see also: William Haynes, nominated to the Fourth Circuit).

Let's leave aside the first possibility under "benefit of the doubt"; that sounds like a valid distinction. Moving onto the second, I begin to feel a bit uncomfortable. Because while Kavanaugh has clerked for judges, he has never been a judge. His experience has always been advocating for a client. And for the past several years, his client has been George W. Bush. Coming back to our "benefit of the doubt", on the question of whether Kavanaugh would challenge Bush's presidential privilege in a criminal case, Milbank quotes one of the nominee's former colleagues from Starr's office: "You might have to reassess based on what Brett does at that point."

You know, I just don't understand why we as a nation should have to live with that doubt. I mean, is it me, or does it just seem like a guy who
a) has never been a judge, only an advocate
b) has deep ties to not only the Republican Party in general, but has served in the administration of the sitting president
c) may have to hear cases regarding privilege in re Cheney's Enron/energy policy meetings, and--well, Lord only knows what's coming down the pike with the Downing Street Memo or other inquiries into how our intelligence could have been so wrong about Iraq's WMDs...

Is there really no other candidate in the entire United States that is better qualified to fill a spot on the bench? Seriously. This is not the kind of doubt that should be banished by faith in the president. Have we as a nation come to installing inexperienced partisans with direct patronage ties to an administration that is already noted as one of the most secretive in American history and which has already invoked executive privilege (in the Enron/energy inquiry) and may do so in the future? Well, maybe some Republicans in the Senate will feel that's a risk they don't want to take with the integrity of our Constitutional separation of powers. Why not drop your senators a line?



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