Daily Kos

Can the president make a recess appointment to the supreme court?

What would happen if the Democrats on the committee boycotted until Hatch agreed to the document request? Can the committee act without a quorum? Is tere some rule of the Senate that would allow the minority to stall hearings? I really think that, if they're blocking these so hard there must be something there. As 12 year old executive branch documents, these should already be in the public domain.

Why can't the Senate just pull everything to a screeching halt and say "Enough is enough".  Tell Bush that "The american people want answers to all questions (not just the Roberts files) before the Senate will push forward with any agenda items" - Force everyone to lay it all on the table - it's time for this politcal game to be over.  It's time for the Senate Dems to use their power.

Let's stop the bus - the driver is lost.

that unless the documents show that Roberts advocated free government-sponsored child pornography or something equally odius, sitting on these memos only hurts his confirmation chances.

If the White House continues to sit on these documents, it gives the Democrats an easy way to justify a filibuster, in that Bush isn't giving the Senate the information needed to make an informed decision. That's essentially the line of attack used against Bolton, and Bush won't have the option of a recess appointment for a Justice (I think).

Release the documents, and that filibuster rationale goes away, and we have to justify a filibuster based on more abstract (harder to argue in a short soundbite) principles.

-dms

As an atty who has also dealt with the history of such matters i can't remember any time when that specific claim (that an atty on the payroll of the gov't is subject to a privilege claim asserted by his government client personally)has been upheld..

For a further example of this, I refer you to the Nixon tapes case where, to argue and defend his claim of EXECUTIVE privilege, Nixon retained private counsel ( James St. Clair, if memory serves), specifically because he knew that any discussions he may have had with a gov't atty. would NOT be covered by any atty/client privilege.

An interesting aside to this is that Leon Jaworski, the special prosecutor who was also trying to get the White House to release materials, insisted that when he argued the case in the Supreme Court, that HE be seated on the right, the side traditionally given to the Government in Supreme Court arguments (and of course, the case was US v. Nixon, not Jaworski v,. Nixon).

Based on the time frame and Roberts' job, I wonder if he wrote up any opinions on the Bork nomination
That would be fun to read!

[Excerpted from "Roberts, Poppy and the Attorney-Client Privilege Sham"]

...The conflict here may be less about protecting attorney-client privilege, and more about protecting the President's father.

There may, alas, be another motivation for George Bush in preventing access to documents showing Roberts' role in hot button cases that could impact his confirmation. That motivation may simply be filial piety - the son trying to conceal the sins of the father. Of special interest is Roberts role, if any, in President George H.W. Bush's 1992 pardon Caspar Weinberger and other Reagan-era officials in the Iran-Control scandal.

Bush the Younger's concern for the reputation of Bush the Elder has been a recurring theme from the beginning of his presidency. In October 2001, George W. Bush cited unusual and unprecedented "national security" claims to exempt key documents pertaining to his father's vice presidency from release under the Presidential Records Act. His new rules blocked the release of 68,000 pages of Reagan-era documents, including documents the Reagan Library itself wanted to release.

Section 11, covering Vice Presidential Records is especially interesting, given Iran-Contra independent counsel Lawrence Walsh's interest in key George HW Bush documents during the second Reagan term. As Scott Nelson of Public Citizen, which brought suit to block implementation of the Executive Order on Presidential Records, put it, "this concept lacks any foundation in American constitutional law. It's interesting that the first beneficiary of this new doctrine would be the father of the man who announced it"...

1. Executive branch is not bound by Congressional subpoenas.  They are 2 independent branches and they cannot tell each other what to do.  In the interest of accomodation and comity some documents have always been provided, but there is no obligation to do so.

2. As I have replied numerous times, your legal analysis of privilege (with respect to the 8th Cir. opinion) is just plain wrong.  It is not even remotely analogous.

3. The documents requested cover Robert's tenure as Deputy SG, not Assistant AG.  I don't know how you can argue with a straight face that in that capacity he did not act as a lwyer but as a policy advisor.

4. Just because the documents are 12 or 100 years old hardly matters.  The Supreme Court has ruled that privilege survives the client.  So even if the client is dead when nothing really matters to him, privilege applies.  This is not exactly analogous because that case involved private parties with private lawyers, but the point is that the passage of time does not ipso facto vitiate privilege.
   

is  making them more look like petty crooks  & conspirators with a lot of dirt to hide.  For the WH to keep asserting that W is King is bound to weaken them even more than they are already.  This is the kind of behavior that has contributed to their poll slide, IMO.  They're putting their own blood in the water with a million paper cuts, & DC water is shark infested.

I'd love to know what Senate Repubs are saying behind closed doors.

As much as I know this will bring a bunch of racial slurs and insults my way by glorious Armando, I have to point out that filibustering Roberts will result in the nuclear option.  There are plenty of moderate democrats who don't believe that these documents should be released (even though a-c privilege could be waived, as a matter of principle they won't waive it), and that Roberts is a good choice for the court.  This will simply pave the way for an even more conservative justice to replace Rehnquist. Of course, a filibuster could be politically viable if Roberts refused to answer questions during the hearing.

But, if a filibuster is based on the claimed a-c privilege, the republicans will not suffer, since any sane person realizes that a Republican president who promised to appoint more Scalias to the Supreme Court is probably going to do just that when elected.

I haven't been able to get on line or read newspapers lately, but I was wondering if anyone could comment on how this is being played out in the media.

The last time I checked in Roberts was still being portrayed as the non-ideological non-partisan, "polite," wonder-boy. Does this spin still have any traction?

And, if not, is there any open outrage and calling of bs with regard to the refusal to disclose all the relevant documents?

And, more important perhaps, are the Dems in Congress geared up for a fight? Are they already talking about fillibuster if the papers are not produced?

One of the very first things GWB upon taking office was "clarify" the laws relating to the release of documents of former presidents. Quite specifically, he issued an order that the documents of the Reagan Administration, which were due to be released, would not be after all.

Generally, the idea of releasing documents from administrations 12 or more years out of office assumes that, whatever they contain (still classified national security matters excepted), it's now history. After twelve years have passed, even if a president were succeeded by his vice president, both are now out of office.

But, of course, there is great reason for this Administration to want to keep the actions of the Reagan and first Bush Administration under wraps. Not only are the top dogs many of the same people -- Cheney, Rumsfeld, et al -- but many of the people a couple of rungs down are as well. Abrams and Poindexter were both convicted for Iran-Contra, and Reagan himself wasn't pursued mostly because of his Alzheimers.

Supposedly Bush Senior wasn't involved. But among other things, the minutes of the meetings that he attended where it was discussed were in the documents due to be released, which the "clarification" kept secret. As were documents relating to things like ... oh, giving weapons to Saddam Hussein, Donald Rumsfeld's trip to assure him of support after Congress got pissed over his use of chemical weapons, and the recruiting and backing of the Mujihadeen (now al Qaeda) in Afghanistan. It was Poppy, and the same cast of characters that are running the country today.

Ken Starr pretty much killed the idea that a government lawyer could hide behind attorney-client privilege when advising the administration on legal matters, and (per Fred Thompson, whom Armando quoted above) attorney-client privilege does not apply in Congressional investigations. And anyway, isn't the client of the Attorney General's and Solicitor General's office supposed to be the American people?

So, as Armando says, their only legal argument is Executive Privilege, and that doesn't hold water, either. It isn't supposed to be hereditary, you know.

So instead, they'll just stonewall, and give no reason except "no." And Congress will go along and cede yet more of its authority to the Imperial Presidency.

"There is no emptier concept than the idea of a principled Republican. That is an extinct species."

Sadly, this is so true. And Conservatism no longer means reducing government interference, protecting and defending the Constitution, and living within our means, either. Instead, it's "fuck you, Jack, I've got mine," and tortuously twisting the very foundations of American liberty to pander to a radical base of Christo-fascists by pumping "persecution" and victimhood to get their money and their footsoldiers.

Where is Barry Goldwater when you really, really need him?

 

The SG's office may have been asked for their advice and opinions by the WH Counsel on how GHW Bush could pardon Weinberger and avoid the impeachment exception in the Presidential pardon if Walsh decided to argue it before the Supreme Court.

Roberts might have had a memo on how Bush would argue that case before the Supreme Court if Bush I had won the '92 election.  THe memo might not have been all that important but it could have made clear that it would be far better for Bush I to lose to Bill Clinton, then pardon Weinberger and the Iran Contra Gang and get off scot-free.

If he wins the election, Walsh could argue the impeachment exception and overturn the pardons in the Supreme Court and then impeach Bush I--likely the end of the Republican Party and the end of Reagan's reputation.  

So Roberts or Starr could have advised Bush I that he would not win before the Supreme Court in an impeachment environment and that the pardons would likely be overturned.

Better then that Bush I lose the election, pardon Weinberger and then hope that Clinton does not prosecute a defeated opponent, something that had never happened.  Then Iran Contra and Bush's criminal complicity in it (he led it), could be covered up for history and a future run by one of the Bush boys.

The presidential power to pardon is granted under Article II, Section 2 of the Constitution.

"The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

This is usually taken to mean those who have been impeached but it could be argued that Bush himself was in danger of being impeached and so the exception would apply to a pre-trial pardon.  GHW Bush no doubt asked for legal advice on this.

So Dems, in the midst of the Plame Leak/WMD Lies Scandal, can ask Roberts searching questions about the Bush I pardons of Weinberger and the whole gang, all guilty of lying to Congress and far worse crimes of running an illegal secret government. Essentially a trial of Weinberger would have revealed his notes of a 1986 meeting that said "VP approves" of arms sales to Iran, whereas Bush had said he questioned those sales at the meeting.  In fact, Weinberger and Shultz had argued strongly that the sales not be made--and then got blamed for them (sound familiar George Tenet?).  In '92 Weinberger started proclaiming to the press that he was not about to go to jail--a message to Bush I to be ready to be impeached.

From Lawrence Walsh, the Special Prosecutor of Iran Contra:

 The Weinberger pardon marked the first time a President ever pardoned someone in whose trial he might have been called as a witness, because the President was knowledgeable of factual events underlying the case.

The criminal investigation of Bush was regrettably incomplete. Before Bush's election as President, the investigation was primarily concerned with the operational conspiracy and the careful evaluation of the cases against former National Security Adviser John M. Poindexter and Lt. Col. Oliver L. North of the National Security Council staff, prior to their indictment in March 1988. This included a review of any exculpatory material that might have shown authorization for their conduct. In the course of this investigation, Vice President Bush was deposed on January 11, 1988.

A year later Bush was President-elect, and OIC was engaged in the intensive preparation for the trial of North, which began on January 31, 1989. After the completion of the trials of North and Poindexter and the pleas of guilty of retired Air Force Maj. Gen. Richard V. Secord and Albert Hakim, OIC broadened its investigation to those supporting and supervising Poindexter and North. This investigation developed a large amount of new material with which it intended to question President Bush. His interrogation was left to the end because, as President, he obviously could not be questioned repeatedly. It was Independent Counsel's expectation that he would be available after the completion of the 1992 Presidential election campaign.

In light of his access to information, Bush would have been an important witness. In an early interview with the FBI in December 1986 and in the OIC deposition in January 1988, Bush acknowledged that he was regularly informed of events connected with the Iran arms sales, including the 1985 Israeli missile shipments.2 These statements conflicted with his more extreme public assertions that he was ``out of the loop'' regarding the operational details of the Iran initiative and was generally unaware of the strong opposition to the arms sales by Secretary of Defense Weinberger and Secretary of State George P. Shultz. He denied knowledge of the diversion of proceeds from the arms sales to assist the contras.3 He also denied knowledge of the secret contra-resupply operation supervised by North.4

2 Bush, FBI 302, 12/12/86; Bush, OIC Deposition, 1/11/88. But Bush's recollection was very general and he did not recall specific details of meetings in which the Iran arms sales were discussed.

3 Bush, FBI 302, 12/12/86, p. 3; Bush, OIC Deposition, 1/11/88, p. 17. During his interview with the FBI, Bush said he would be willing to take a polygraph examination concerning his lack of prior knowledge of the diversion.

4 Bush, OIC Deposition, 1/11/88, p. 154.

In 1991 and 1992, Independent Counsel uncovered important evidence in the form of withheld documents and contemporaneous notes that raised significant questions about the earlier accounts provided by high Administration officials. The personal diary of Vice President Bush was disclosed to Independent Counsel only in December 1992, despite early and repeated requests for such documents. This late disclosure prompted a special investigation into why the diary had not been produced previously, and the substance of the diary.

Following the pardons, Bush refused to be interviewed unless the interview was limited to his non-production of his diary and personal notes. Because such a limited deposition would not serve a basic investigative purpose and because its occurrence would give the misleading impression of cooperation where there was none, Independent Counsel declined to accept these conditions. A Grand Jury subpoena was not issued because OIC did not believe there was an appropriate likelihood of a criminal prosecution. Bush's notes themselves proved not as significant as those of Weinberger and Shultz aides Charles Hill and Nicholas Platt, and the statute of limitations had passed on most of the relevant acts and statements of Bush.

http://www.fas.org/irp/offdocs/walsh/chap_28.htm

From Slate:

Walsh's final report concluded that Reagan "knowingly participated or at least acquiesced in" the Iran-Contra cover-up, which involved, among other things, Oliver North shredding thousands of documents that may well have implicated Reagan more deeply. Any Flytrap cover-up pales in comparison. (The nearest equivalent involves the mysterious appearance--not disappearance--of documents, none of which has turned out to be vital, in a White House closet.) Yet Walsh didn't bring charges against Reagan, or even depose him to squeeze out information or set him up for a perjury rap.

The case against George Bush--by the standards being applied to Bill Clinton--is even stronger. Bush claimed in the 1992 campaign that he'd given sworn testimony hundreds of times conceding that he knew all about the arms-for-hostages deal. In fact, when the story broke in 1986, Bush repeatedly claimed to have been "out of the loop." He knew we were selling arms to Iran--itself flatly illegal and spectacularly in conflict with the administration's public pronouncements--but, he claimed, he had no idea the deal involved paying ransom for hostages.

Specifically, Bush claimed not to have attended a January 1986 meeting at which Secretary of State George Schultz and Secretary of Defense Caspar Weinberger vehemently opposed trading for hostages. When White House logs indicated that Bush was at the meeting, he emended his story to say he hadn't caught the drift of Schultz's and Weinberger's objections. If only he'd known George and Cap were as bothered as he was, Bush said, he would have tried to stop the policy. This was his story until 1992, when Walsh released notes taken by Weinberger at the meeting, recording that "VP approves" of the policy Bush claimed to be both ignorant of and disturbed by

As president in 1989-93, Bush did his best to thwart Walsh's investigation. He tightened up on the release of classified information. A diary he started keeping in 1986 somehow never materialized until after the 1992 election. And his last-minute pardon of Weinberger, Poindexter, and others, after he'd lost re-election, effectively thwarted Walsh's pursuit of Bush himself, among others. No "obstruction of justice" or "abuse of presidential power" in Flytrap comes close.

http://slate.msn.com/id/12441/

More:No release of Roberts' papers from Iran-Contra Pardon days!

Can the legislative branch stage a raid of sorts on the executive branch?

Perhaps subpoena the documents?

We all know that if we wait for a court ruling it will not be done in time, yet the Shiavo issue was rushed through - how?

ARB

...party and slow this process until they get the documents they should already have.

Bwahhhh, ha, ha!!!  Unite as a party?!?!?  The Democrats didn't stop CAFTA, didn't protect ANWR, didn't prevent the crappy bankruptcy reform bill, didn't stop the rich-get-richer energy bill, didn't prevent a load of really junky judges getting promoted, didn't stop the Bolton mess, etc.

Why would Bush turn over the papers?  He doesn't want to and no one will make him.  The left is neutered and the middle is ineffective.  There is only one concept emptier than a principled Republican, and that is a Democratic party that can hold as a group on anything important.

"Operation What are They Hiding?".  We hear it all the time - if you have nothing to hide you would not mind if we search your bag ..... if you have nothing to hide, why do you need a lawyer...

Well, Mr. Bush, if you have nothing to hide, why won't you release these papers?  How is it in the public interest to hide information essential to the public interest?

Why does Mr. Bush have so much to hide about...

Judge Roberts
The CIA Leak
The Abu Gharib Torture Photos
The War in Iraq
Photos of Soldier Coffins
Energy Policy Meetings
Medicare Costs
Social Security Privitization
First Amendment Zones
WH Operatives Impersonating Federal Agents
And so on...

What are they hiding?

is trying to provoke the Dems into a filibuster, so that they can portray the Dems as "obstructionists". Either that or they have something to hide, in which case their nomination of Roberts was a stupid idea.

In addition to the question of what the White House is hiding about Roberts, I'm beginning to wonder if they are withholding the information from the Democrats or the religious right?

NYTimes

Roberts' memos of the early 80's indicate that he opposed bias laws and privacy rights. Yet, his pro bono work on the gay rights case occurred in 1996.

This may be indicative of a man who has undergone a shift in the conservative positions he expressed when he was in his mid-twenties and fresh out of law school.  Perhaps it's just wishful thinking on my part but the pro bono work really intrigues me.
 

The issue would be out of Presidential elections. Then the focus could be on Iraq, deficits, and the economy.

I would just like to point out for a moment that the debate happening between Armando and Drgrishka is exactly what I love and respect about the potential of the the cyberspace public forum, and about this blog in particular. As a reasonably well informed and intelligent person who has a limited kowledge of the specifics of law (linguistics is my field), your debate has not only broadened my knowledge and interest on the subject being discussed, but also swayed my opinion with every entry.

This never could've happened on ANY right leaning blog. This is why the term liberal is inappropriately tied only to Democrats (and inappropriately used as an insult). The ability to consider someone else's opinion rationally and to consider that you might be wrong is not solely the domain of Democrats. Nor, in any healthy society should it be. This is one of the most detrimental windfalls of the right's propoganda machine on American society. They managed to label rational discourse as 'liberal' (and to do it with a sneer).

Sorry for the rant. I just wanted to say thanks for the informative and lively debate.

Rock.

on the front page of Roberts and executive branch power -- some have described Roberts' philosophy as a "deference" to Presidential power.

as a strong supporter of federal abortion rights, I think the idea of having a new Supreme Court justice whose record shows he might well agree that nothing -- including indictments of administration officials, perhaps? -- should be allowed to interfere with President Bush's mission "to keep the country safe from terrorists" is more frightening than the thought that such new Supreme Court justice might overturn Roe v. Wade.

and the thought that Democrats in the Senate will let Roberts be appointed without reminding the American people that the President's power is SUPPOSED to be limited by "activist judges" and "obstructionist Senators" is disheartening, too.

Just another in a long line of Bush's petulant, arrogant "f*ck you" to anyone who has the audacity to question him.  "You will respect my authoritie!"  He makes Eric Cartmann look like a humanitarian. Everytime he obstructs the search for truth, we should plaster that lovely photo of Bush shooting the finger with the appropriate caption.  In this case, "Screw you, No Roberts records."

"It is simply contrary to the public interest for these documents to be released," said the letter signed by Rebecca Seidel, a deputy assistant attorney general, on behalf of William E. Moschella, assistant attorney general for legislative affairs.

What the heck does this mean... contrary to the public interest?  Contrary to their agenda for us?

It says...
"Roberts devoted time free time for liberal cases"

http://abcnews.go.com/Politics/wireStory?id=1013765&CMP=OTC-RSSFeeds0312

The story was even linked on Yahoo.com

Hmm, I know some of us had already been discussing his involvement in the gay rights cases but I'm surprised to see this whole pro bono/liberal case stuff about him get so much play in the media.

#1) Prosecutor Fitzgerald, the guy from Chicago who seems to be going after Rove in the Palme outing.  He seems to live by principles.  I worry that he might be the victim of a repeat of the 'Saturday night massacre' but I haven't heard one word that would make me worry that he might discard his principles.

#2) Texas state senator Jeff Wentworth, who called himself a Republican years ago when that meant political ostracism in Texas.  He opposed gerrymandering when the Democrats did it, and still at least spoke out against it when the Republicans did it at Tom DeLay's bidding.  

#3)  Senator John McCain sometimes acts on principle.  We could have a nice discussion of how often.  Maybe somebody keeps a blog with a running score.

--------------
That's the only ones I can think of.  They're not quite extinct, but they sure are an endangered species.  And the biggest danger to them is Republicans like Rove and DeLay, who will try to drum out of the party anyone who won't march their goose-step.

there is essentially no ability to get the Rethug majority to act re Congressional rights.  

On far too many issues, the Republican majority in Congress has not stood up for traditional legistlative rights since Bush usurped power under SCOTUS cover.  There have been numerous cases of various agencies ignoring and/or treating cavalierly legal requirements for reporting, virtually refusals to testify, taking away staff and members' security clearances (makes oversight pretty hard when you're not authorized to see information), and so on.  The push back from the Republican majority is rare, with it not rare but endangered in the House of Representatives.

Thus, in terms of legal / constitutional concept, I believe that you are 100% right, do you really believe that Frist and company will allow this to escalate to that level of constitutional crisis?  And, will at least six of the Republicans be willing to vote with Democrats on a path that would create this level of crisis.  

It is a sad statement about how so many are flying the Elephant above the Stars and Stripes, but the 12th commandment for today's Republican Party is Party before nation ...

even if roberts is as clean as the proverbial whistle, bushco would still be refusing to release documents... their posture is not to provide ANY information about ANYTHING out of the desire to maintain absolute and total control and retain the perception of invincible power...

here's the litmus test... briefly cobble together an imaginary mental scenario of karl rove cooperating in any way with those he believes to be the "enemy..." with me so far...? then review what you already know about who calls the shots, creates and maintains the message strategy and insures that the fratellanza are marching in synch... include a re-reading of bush's recent comments about retaining full confidence in his chubby, sociopathic geek...

asking for the wh's cooperation in ANYTHING is tantamount to pissing into the wind...

I think it's time for a full-court press, damn the consequences. How much worse can Roberts be than being intimately associated with the Bushies efforts in FL and working for Ken Starr? About the only thing worse I can think of would be if he was bonking Bork on a regular basis.

This guy should be dead in the water. Anyone who worked for Starr should be considered radioactive. C'mon people, I know Bush tends to reward all manner of malfeasance and incompetence with promotions, but do we have to slavishly follow along in every instance (Bolton notwithstanding)?

I don't have much faith that Senate Dems can pull together on much of anything, but I think now is the time to start. The repugs have been calling us obstructionist for how many decades now? Well, neener, neener, neener, and BFD.

If we don't do everything we possibly can to block this guy, then what's the point?

Dubya knows that "Congress" exists in name only now because the corrupt idiots who occupy its seats have refused again and again to defend the perogatives of the legislative branch from massive encroachments.  Consider the war vote.  Everyone knew that the invasion was SCHEDULED for the spring.  It was a positively 18th century situation.  5-7 whole months to deliberate war.  

And what did the founders think was the primary distinguishing characteristic of a republic?  Legislative control over the power to declare war.  

Bush rolls out the "new model" (in Andrew Card's words) war in September '02.  First he (or Cheney) declares that he does not even need Congressional  authorization to start an agressive war.  In effect he said to Congress, I'm feelin' like war in the Spring, and I WON'T TELL YOU WHY!  

What does Congress do in this situation?  They pretend they don't know about the troop movements.  They pretend they don't know about the timetable.  They pretend they really think war is the Monkey's "last resort."  Do they demand information?  Not really.  Do they make Rumy answer questions?  No.  They just wring their hands a little and pass the Use of Force Resolution.  

Goodbye "declare war" power.  But it was long gone by 1960, wasn't it.

Still, the point is that these congress critters have proven that they will not lift a finger to protect the separation of powers.

Perhaps the fatal step was when no Senator seconded the challenge to the 2000 Florida electors.  Tom Delay should have had a Rethug Senator do the honors in order to smack down the uppity Supremes for getting involved.  He had the most to gain.  If he had, W would owe his steal to the Hammer.  Then the Bug Man really wouldn't be lying when he says "I am the Federal Government."  So why didn't he?  What's wrong with Congress?

Bush is a kind of Sadean figure.  He's constantly testing the limits of his freedom, AND HE ISN'T FINDING ANY LIMITS!  

"It is not in the public interest to release these documents," you can be sure that such a release would be in the public interest, but not in their interest.  

Roberts was probably advising the government to do all sorts of nasty, illegal things.  They're burying this stuff for the same reason they buried PapaDoc Bin Bush's presidential documents:  It's incriminating.  

It is interesting this dialog has drawn from milestones in recent and far past history of our government, its present structure, past contortions and crises, and even distant foundations in common law and the gritty tension which in those remote centuries saw the British monarchy incrementally pale in authority as early forms of parliament developed.
I wholeheartedly agree with the most strident voices above that at its base the nonproduction of documents represents a problem, and, if unresolved, further denatures our system of government.
As the opposition here present and debating observes, the most authoritarian approach to demicomity which is the prime characteristic of this administration is likely to be the soundbite du jour.
And as other discussion participants accurately lament, hoping for more than a few Democratic Party Senators to raise their voice in objection appears to be problematic, except, as some here observe, if there is an issue which is important, and we show both Senators and the public why.
It occurred to me that the Senate itself might already have in its possession from the time of Iran Contra documents of Roberts' authorship; and that other trial records could be subpoenaed.
I wonder if Robert MacFarlane is still out there, and, beleagured, willing to disclose more than the carefully parsed incremental admissions which he uttered at his hearings.
As investigators on the web have observed, dissimilating to Congress is not known to be a blot on the resume when applying for a job in the Bush-II administration; there is one gentleman serving who was convicted of perjuring himself to Congress.
There was an interesting batch of links to SG documents authored by Roberts posted at the WA-PO very recently; their contents, much less vigorous than the first few memos that surfaced online from Roberts' days serving Fielding in WHC.  My take was the SG material has been so vetted it is guaranteed to be innocuous, as well as sparse.  The man was prolific.
Now, I take exception to the statement which says, Armando, any Republican, is craven; George Voinovich briefly stood on his hind legs in the Bolton committee hearing.  Ok, it was very brief; and perhaps staged.
It happens I live in a part of the US where a local Republican helped a conservation effort, which benefitted me and our neighbors; and, this is a binary star, Republican, Democrat; the mutual force of repulsion yields debate.
Admittedly, debate is a socially acceptable term for the interaction.
SG, above, I believe, is on target; although that forray is unlikely to take place in the fourth week of August timeframe the administration is planning for beginning the Roberts hearings, though I have read rumors of a later date.  And, you know, Sandra D. O'C. might do a few months in the new term if this becomes protracted.
I see Roberts as consistently developing strong political advice; it is disciplined, and severely schooled, but at its base political.  The law is a tool for implementing change in service of his employer when it is the government.  Then there are his private practice cases; I believe I have found one I like, regarding delaying development in a remote mountain lake area, but I admit to not having read argument yet; I liked his client, TRPA in the CA NV area.
Since this is getting geographic, I probably should mention, quickly, that although our strategists are numerous, an important point-man is the minority leader; I recall with dismay his speech wherein he read from a dictionary the definition of a term Judge Gonzales penned to chastize Judge Owen, calling her bench activism unconscionable, as if she had not cracked all the lawbooks in the coursework on judicial ethics.  Well, it is tough to recall every single precedent; she could set it; easier.  The essence here with respect to ML Reid is he better study up if he is going to lead this tussle, as, as SG and others above mention, Roberts is a backroom boy, and a very known factor in Republican leadership inside the beltway, and many people either have respect for him from having relied on his work product in the past, or acquiesce to his business clout and SCOTUS acumen of a mechanic grade.
I think what is going on in our government is yet a subsequent stanza in a tune it has been playing for many years and many administrations, and, I agree with the contributor who called it tyranny.  Our system of government is supposed to squelch that, and to some degree each of the most egregious petty tyrannies in recent past administrations have been suppressed, though, as SG observes, perhaps the lumpiest of the trash has been swept under the carpet, not tossed out.
Nevertheless, we are being told by Scott McClellan, this is a level surface, a playing field even; and, no, there are no lumps under the rug.  And we, they, cannot discuss them while a criminal investigation is ongoing.  Shed a crocodile tear there, Scott McC.
I regret having to agree with the probability of the soothsaying, above, authored by contributor Boiling with respect to public disinterest in arcane lawyer verbal pyrotechnics full of sound and of scant substance; and, that if Roberts is to be accosted in verbal sparring the issues need to be major.
For one, I think his incentive to side with the constitutional convention participants who whined when the radicals suddenly achieved placing the Bill of Rights in the constitution final document, is an indicator of his prime motivation; I read him as a monarchist at heart; perhaps he would be happier jousting with Whigs and Tories in a system of government run by oligarchs beholden to the upper class and the privileged.
Historically, I believe the transition to a more egalitarian form of government is the work of centuries; which is why each transit is important, such as the present outrageous abuse in the withholding of the Robert documents.  We have several centuries of momentum here, and reversing engines back preNewDeal is going to risk a lot more than the health of women, NARAL's guaranteed strongest argument.  Rather, although Roberts himself would tell you, probably, he believes women's right to vote to be an immutable part of SCOTUS tradition that is to be respected for all time in the US, I doubt he has the historical scope and vision to see that his partisan track record and the cases he has selected to use to diminish civil rights constitute a serious impetus toward those times when women had to struggle to have their voices heard in the US.
The regression might be quicker than Roberts could anticipate.  We need to look at court chemistry as well as the tumbling sequence of administrations in the executive branch.  I wonder if Scalia would become hyperreactionary in the Roberts petri dish.  There are problems on SCOTUS already, and Roberts might augment that.
Certainly, Bush would love to rattle the saber and leave the imprint on SCOTUS.
The issues are large, and some very bright people are working on them.
Armando's excellent talking points at the top of this discussion have contributed very constructively in this process.  Let's get this done.

Roberts is obviously a proponent of "judicial restraint."  While ordinary folk might think this means that judges should limit their rulings to the legal issues brought before them and not make new law from the bench, what it means to the proponents is that the judiciary should restrain itself from criticism of the executive or legislative branch.
From this perspective, the three branches of government simply act to re-inforce each other in governing the unrully masses.  It isn't the principle of the separation of powers that's under attack.  Rather it's the concept of checks and balances, which perceives the three branches as holding each other in check, rather than working in tandem to run the government.

The above comment is truly a misstatement.

Why not discuss the term accurately, rather than trying to redefine it to serve the purpose of denigrating the viewpoint and manufacturing some paranoid fantasy of fascist oppression.

Judicial restraint means exactly what it says: Judges refraining from overstepping their role of interpreting the law by creating new law.

Going back to the original point of this thread, is it worth noting that what the Democrats are demanding of Roberts exceeds any historical investigation?

In other words, is it not the Democrats who are going overboard?

When the Bush administration seeks to limit the extent to which the Democrats are pushing this investigation, is it not seeking to remain within historically reasonable boundaries of inquiry?

The senator's role has morphed from "advise and consent" to "NO ONE EXPECTS THE SPANISH INQUISITION!"

www.liberallyspeaking.blogs.com

The Bush Administration has stated that it became ebmoldened to recess apoint Bolton by the lack of resistance to the announcement of Roberts being nominated for SCOTUS. Something to consider.

...your last two grafs are, alas, all too accurate.

The GOP simply does not care about indivdual liberty, the Constitution, or the various roles of the three co-equal branches of Governemnt. They put this:

Above this:

John Stewart joked the night after Roberts was introduced, "no way a guy can be than clean cut and not be gay."

Anyway, Roberts didn't get married until he was forty (don't buy the "Catholics do that all of the time" foolishness).

Both of his children are adopted.  Don't know if that's because he and his wife can't have children or that he did not want to do what it takes to create some.

His pro bono work with the gay rights case, which although he was an attorney, his supposedly "conservative" firm did not have to take.

Does anyone know of his affiliations, if any, with the Log Cabin Republicans?

Fact of the matter is, for me, this guy proves that Bush is not nominating anyone based on social issues like Roe v. Wade and gay marriage, the two issues they use to trick the gullable.

This guy is fascism with a smile.  He is all about giving the EXECUTIVE branch and chief EXECUTIVE officers everything that they want.

Facism:  A system of government that exercises a dictatorship of the extreme right typically through the merging of state and business interests, with belligerant nationalism.

And don't go into the "if he's gay, what's wrong with that" foolishness.  Every time that I post this on a pro-dem site, that's why I always hear.  That's not the issue here.

The issue is this guy will be bad for the rights of most Americans, and the fact is, anyway that you can open people's minds up to listening to that argument is great.  If he is tied to the gay community, bring it up and then watch the "right" fight against itself.

Roberts signed briefs seeking to overturn Roe vs. Wade. We're told that the brief was his client's opinion, and not necessarily his. Fine; what was his opinion? Well, that is confidential executive information. What does he think now? That is inappropriate to ask.

The senate is supposed to confirm him without any information.

Nothing more, nothing less.

Failure to turn in the requested documents should be the legitimate ground to DQ Roberts because he refused to provide information necessary to evaluate him.

"The Justice Department letter said that such material had been protected in the past under attorney-client privilege and that releasing it would set a dangerous precedent and inhibit the agency's lawyers from frank discussions of pending cases. "The office simply could not function effectively if its lawyers were asked to provide full and candid advice in spite of the expectation that their work product would be fair game in any subsequent Senate confirmation process," the letter said."

Why should the administration argument hold if the Justice Department works for the people and we by definition are assumed to not have an adversarial relationship?

by old rules if they choose not to be.  It is an axiom of parliamentary law that when the term of one body expires and a new body comes to replace it, all of the old business dies with the old body.  That includes the rules.  The Senate essentially readopts old rules every opening session by silent acquiescence.  But they don't have to.

Ducktape:  Forget Goldwater:  he was the sort who admired atmospheric testing of A-bombs.
Re:  Armando v Troll:  some cites you are bandying about are independent counsel regs.  If middle roader Clinton gave us any heritage with measurable shortterm detriment it was sunsetting the IC law; one wonders how far Fitzgerald special prosecutor will go.  We have to agree that our quantum of comity now is equal to that which existed preWatergate; though, perhaps Congress will itch to restore the IC law.  It would take a lot of social upheaval for that to get reborn.  The slackening of social pressure is the underpinnings to a lot of the unpredictable centrist posturing in modern Congressional debate.  Knocking US civil rights suppression out of the picture in the social legislation binge of the Johnson Nixon years eased the rigorous demands that politicians needed to endure to get voted into office; instead social mores are advanced.  However, being a modern historian, one might assess Roberts, and accurately, as the point person in the effort to rollback civil rights.  That was his portfolio in government.  Do we want him back.
Rational Being:  Please add to that subpoena:  Bork strategy memos authored by Roberts.  I sorely wish we  need not reverse engineer Republican policy since Reagan in order to know where to search for Roberts fingerprints on policy, although that is an excellent hypothetical exercise for the most politically informed and astute operatives.  That would be like an innately Rovian exercise in problem quantification, given Rove's pamphleteering origins; a first phase.  Some pretty spunky pamphleteers contributed to the founding documents of the US in late colonial revolution times, we know; and they got in a lot of hot water withal; while raising some interesting, strident points, which later actually in the hands of mellower and more balanced individuals, found their way into the constitution.  Fortunately.  I would expect Leahy's researchers to be checking these matters as we speak.  It is important to them in designing lines of questioning.
Hannah, participant above, has glimpsed the unreported news in an interesting way, although it will take a humorous and studious historian in century XXII to tell it like it was now.  It is unfortunate to grasp the continuity between some proven corrupt administrations and the current one.  A hurdle for the present administration has to be its minority composition; there have to be a lot of turf disputes among fringes there.  Of course, that nearly describes the Democratic Party big tent, at least classically.  Perhaps Democrats are becoming more affluent and better educated, superimposed on the historical roots in the less educated hustings; so the tenor of the debate has become a little offensive to those who carry the aristocratic banner, like the visiting troll today, recognizing we are having cogent talk about this.
Jennifer Poole.  I share your concerns; and you raise a curious, central, and much undiscussed point, that of Roberts' view of the Presidency, and separation of powers among the three branches; let's include the fourth estate in this too, although I kind of anticipate where on the spectrum of constraints Roberts will land in matters of press freedom, less is more to the man with regard to press.  I anticipate separation of powers will be treated in depth at his hearings, as one of the high risk behaviors of the current SCOTUS has been its adventurist embarcation into political matters a la GvB2000.  Unfortunately, Roberts can attempt to temporize his replies to such a line of questioning by attempting to use the martial law mantle; we need a good debater to debunk that defense.  The real Achilles heel here, regrettably again is the current administration's degradation of the process and its sapping of the international ambience of dialog and cooperation, so the administration's own actions have magnified the tensions which have engendered ever increasing need of yet further doses of pseudo martial law in the Patriot Act response line; pity.  It seems like an ingrown kind of world outlook is at the heart of this administration; and those individuals in it who are bright are all over the map politically, in the sense that there is no touchstone in the President's office; it is true government by committee.
Homigenius.  Now I have to worry, and so does Roberts.  Of course, you are right.  This is TX style administration politics:  promote the most egregious proponents of the most skewed policy; it is on the theory that if guarding hens, a fox becomes independent and provides for its own sustenance.  I am beginning to think if Bolton is Bush's idea of a fit at the UN, it must be an equally grotesque paradigm which Bush perceives fulfilling by appointing Roberts to SCOTUS, like taking the top 12 floors off the Supreme Court building, please leave the front steps in place.  Bush would be a Libertarian if there were a third party system in this country.  He is a little dissociated from process.  Like he said right after the nomination, he's is not a lawyer; he values human factors and leaves the legal matters to attorneys to vet by peer review, or some such perspective.  Like if he disagrees with the science, suppress the reports or edit them, but control the documents and pursue the policy; tell the forest service to let all the forest lands increase commercial timber operations and put roads in to as many wilderness areas as possible during his second term in office.  The latter is worrisome with respect to some of Roberts' track record, which tends to permissivenes in approving destruction of habitat and rolling back environmental protections.  They may get this gentleman approved in the Senate, but his regressive positions are going to be stated in the light of day, if we have senators willing to quiz him boldly.
Vergniaud.  There is something in what you advise, and the insight of it.  Though several have reminded us recently of the early test of presidential power as the c-in-c, and it was agreed, as you note until 1960 at least, that the Pres could deploy but Congress held the power of the purse, so the deployment might be short lived.  In the Tripoli precedent, the pirates got a brief message from the US President; and that was effective, not causing a declaration by Congress.  I thought of that a lot as the most obtuse thing in Reagan's early presidency was setting the MO's anchor off Beirut and bombarding.  Bush is from the same gunboat diplomacy school; don't have to understand it; provide macro executive guidance.  Delusioned is what he is, with respect to the impact on our institutions, an upon the world community.  Forget Kyoto and ABM treaty; SDI.
Armando, Knowing of you only recently, and of Bobby Byrd a while, I arrived mid conversation there.  Looking at where Byrd is now in the Gang of 14 sums it up.  One day while driving, the radio played his pleas not to send troops to Iraq.  Strangely, I thought that heart felt.  However, during the recent publicity at the release of his bio, the NYT published a debunking of his klan background; seems he was in eight years, he says eighteen months.  That was a very long time ago in the 1940s.  Though he sure looked a lot like McCain in those photographs when the Gang of 14 held their press conference, all middle, no road.  He is one of the rare modern Dixiecrats, so, perhaps he has much to teach the south in that regard.  I think our posts are supposed to be brief; it's that you provoked a lot of interesting comments here and some I wanted to address directly.  John

It's a debatable point, with each side having a decent argument legality-wise.  But at the end of teh day Senate rules say what 51 members say they say.  Much like the Constitution means what 5 Justices say it means.

The replicants in the WH are itching for a fight.  Their drooping poll numbers need a little bolstering by positioning the dems as obstructionists...or worse yet.. whiners...

In the argot of Newt Gingrich--we are doing this because we CAN do it....

And after the memos....then what?
The NYT is already investigating the adoption of Robert's children!

 Dubya actually goes and nominates an excellent candidate (accidentally, I'll grant you), and simultaneously provokes a war over him.
 The Senate Republicans don't like him because he's not partisan enough. The Senate Dems don't like him because he's not partisan enough.
 And now the whole thing has devolved into a turf war between the executive and legislative branches.
 I give it a month until the argument turns to who's to blame for his not getting appointed.