Because Maybe it's Not Good to Head the Judicial With Someone Paid to Help the Executive Get Away With it?

Today's chapter in the slow-motion stillbirth of the Miers nomination is about how President Bush is refusing to hand over notes from her work as White House counsel.

Here's a way out of the pickle -- How about not nominating White House counsel?

Comments

[RA]

Once Miers is on the court she will no lomger be a "White House Council". Of course Bush wants to put people on the court who will vote the way he likes. ALL PRESIDENTS DO THAT!

This is merely special conditions liberals always put on conservatives. If this was Clinton's White House Council it would be unfair pigeon holing and sexism.

Nobody ever said liberals play fair. But useful idiot conservatives should be able to see through it.

[jf]

Matt, I think that's not just a way out of the pickle, but the only way out. Of course, this was all part of the master strategery, since nobody can honestly expect he'd turn over notes like those.

[snacknuts]

andrew sullivan is looking forward to james dobson's senate hearings wrt miers' nomination. here's glenn reynolds take btw.

[Dave W.]

since nobody can honestly expect he'd turn over notes like those.

I dunno. Over at Freeperland they say that you ain't got nothin' to worry unlless you have something to hide. I imagine that their hero must feel the same way. RA could probably confirm this for us.

[fyodor]

If this was Clinton's White House Council it would be unfair pigeon holing and sexism.

How informative (sarcasm). You may be right, but so what? Why so what? BECAUSE YOU MAY BE WRONG, TOO!!! Well, okay, to Democrats and liberals, sure, that would likely be the case, at least for some. But it's just as likely Republicans would be on the other side of the issue from where they are now. Blah blah blah.

Wanna cut through the blahs? Then give us REAL LIFE EXAMPLES. You know, ones that ACTUALLY HAPPENED. Democrats HAVE actually been president and made Supreme Court nominations. HAVE THEY, in fact, appointed a White House Counsel? That would be a lot more interesting to know than your self-serving all-too-easy hypothtetical.

[R C Dean]

Over at Freeperland they say that you ain't got nothin' to worry unlless you have something to hide.

Well, they are idiots.

Even if you don't have anything to hide, there are very good reasons for not waiving the attorney-client privilege.

[mike]

I thought by law that President Bush had to hand legal papers over when they are requested. The client is the federal government, so confidentiality does not apply in this case, or so I thought. Anyway, I'm so sick of this administration being so secretive.
Is the President using executive privilege so he does not have to hand over the papers?

[jimmy]

is reason now advocating the dismantling of the atty work-product privilege? the fact that someone is an atty employed by the govt does not negate the privilege, which is held by the individual, not by the govt. curious stance for libertarians.

[taktix]

This is more proof that Miers is a sacrificial lamb. He just handed democrats a sacrificial knife.

[jf]

mike:

I believe as White House counsel, her client is the President, who is most definitely not the living personification of "the federal government". Attorneys General and Solicitors General are what you may be thinking.

Constitutional-legal types please feel free to correct me.

[BT]

>>If this was Clinton's White House Council [sic]
>>it would be unfair pigeon holing and sexism.

Are you seriously suggesting that Bill Clinton would have been allowed to get away with nominating his own lawyer for SCOTUS? You must have a really short memory.

[MP]

Even if you don't have anything to hide, there are very good reasons for not waiving the attorney-client privilege.

Sure, but one has to imagine that there is at least something in the written lawyer/client relations between GWB and Miers that GWB would feel comfortable releasing and that would give some support as to the validity of his choice.

[jf]

I think her notes on nominating John Roberts should be fair game, as well as any other memos regarding the selection process of judges. Actual attorney work done should not be.

[Matt Welch]

is reason now advocating the dismantling of the atty work-product privilege?

[Matt Welch]

Weird ... anyway, the answer is "no." I was personally advocting not nominating the sitting president's counsel.

[fyodor]

jimmy,

I don't see anyone advocating dismantling the atty-client privilege. I think the point of the post is that nominating the White House Counsel inevitably creates this conflict, making it a bad idea to begin with.

[fyodor]

Matt,

Couldn't you have had the decency to wait till I explained your position for you?!?

[cdunlea]

is reason now advocating the dismantling of the atty work-product privilege?

I can't speak for reason, but the White House made its bed by nominating her, an attorney with absolutely no record to show her credintials. The SJC needs something to base a recommendation on, and given how her questionnaire answers imply the thought processes of a 10-year-old, they're getting close to the bottom of the barrel.

Maybe the knuckleheads on Penn Avenue should have thought about the consequences of this nomination before they put her hat in the ring, but like everything else they didn't seem to have a plan.

[biologist]

it's nice to see the Reason staff having trouble with posting comments just like the rest of us schlubs

[Matt Welch]

At least I can spell "advocting".... Now if only I can figure out what it means.....

[Pro Libertate]

I agree with Matt--nominating someone whose only relevant work product is privileged is a bad idea from the get-go. Whether the privilege should apply to communications between the White House Counsel and the POTUS is another question.

As I understand it, the White House Counsel provides advice and counsel to the president in his official capacity only, not to him personally. In your standard attorney-client setting, the privilege is favored because it encourages people to communicate freely with their attorneys, thus ensuring (in theory) that they get effective legal advice. I'd say that public policy interest exists here, too, because if the White House Counsel could easily be compelled to reveal communications with the president, you might as well get rid of the office altogether (the office of White House Counsel, I mean), because no POTUS would ever talk to his counsel again without the privilege.

Of course, in your normal attorney-client privilege situation, the client can waive the privilege. The POTUS-White House Counsel relationship is a little different because there's some question about just who holds the privilege--the president or the government as a whole. One possible parallel is the situation found in corporations, where the in-house counsel represents the company and not the executive officer(s). I'd say that if push came to shove, this privilege would be found to have a somewhat narrower scope than your every-day attorney-client privilege. In addition, there are also several statutory exceptions that could further weaken any privilege claims (for instance, if Ms. Miers acquired information about a crime committed by a federal employee).

Just to make things more interesting, there's the scarier doctrine of executive privilege. It's asserted for much the same reasons as the attorney-client privilege is--need to be able to talk to my advisors freely, dang it. Executive privilege is much fuzzier than the attorney-client privilege, and it has not, for the most part, really been tested in practice. Presidents pretty much all find a reason to assert this privilege at one time or another (both modern parties are guilty of this), but they usually back down to avoid major conflicts with the other branches.

[joe]

RC, "Even if you don't have anything to hide, there are very good reasons for not waiving the attorney-client privilege."

And so, we return to, How about not nominating the White House Consel?

or, if you absolutely must nominate the White House Counsel, How about appointing someone with an impressive record and a paper trail to be White House Counsel, so that when you do nominate her to the Supreme Court, the Senate can have something to consider when you nominate the White House Counsel and refuse to release anything she wrote?

[Tom Crick]

It's disgusting the way some Presidents hide behind the Constitution.

[jf]

On the other hand, being WHC is good enough to become AG...

Man, Bush sucks.

[Dave W.]

I have been turning over this: should a president appoint (qualified) WH lawyer to SCOTUS issue.

I think it is okay to appoint such counsel generally. However, there are a two important functional requirements:

- Senate should have alternative meaningful way of assessing the nominee. This could take the form of full, frank oral answers at hearings (although this strategy hasn't been popular in my lifetime). Alternatively, the assessment basis could take the form of non-privileged writings (eg, legal brief, judicial opinions articles, recorded public speeches). But it has got to be something substantial.

- Nominee should be clear going in as to what her recusal policy will be when WH related cases come before the Court.

I don't think nominee Miers will meet either of these requirements, and I see that as the problem, rather than the mere fact that she was WH counsel.

[Pro Libertate]

In theory, there's not that much problem with appointing a White House Counsel to the Supreme Court. Sure, a justice who held that position might have to recuse herself from matters she was involved in, but, in practice, that wouldn't come up very much at all. Normally, anyway.

The big problem with Miers is that her role as White House Counsel is the only relevant experience we have to judge her by. For the whole advice and consent process to work, the Senate needs to be able to evaluate the nominee thoroughly. That's their job, and a president that tries to sneak a cipher past the Senate deserves to suffer a political defeat. If the Administration isn't willing to cough up some documents, then, for that reason alone, the Senate should not confirm the nomination. Especially considering that there are hundreds of candidates who are more qualified. In fact, I'm not sure that I'm not more qualified. Hmmmmm. . . .

[gaius marius]

Even if you don't have anything to hide, there are very good reasons for not waiving the attorney-client privilege.

all the more reason to be reviled at the idea of nominating the president's private attorney, mr dean. bush is abusing the senate and the people by purposefully nominating this underqualified candidate simply so that his nominee can evade real examination through atty-clinet priviledge.

The big problem with Miers is that her role as White House Counsel is the only relevant experience we have to judge her by. For the whole advice and consent process to work, the Senate needs to be able to evaluate the nominee thoroughly. That's their job, and a president that tries to sneak a cipher past the Senate deserves to suffer a political defeat.

amen, mr liberate.

[Pro Libertate]

You know, if the president really wanted to cause a ruckus, he should've nominated a nonlawyer. That's completely Constitutional, and the indignation from legal scholars would've been a wonder to behold. Now I'm all for granting divine status to the legal profession--as long as I can get some--but we're waaaaaay too pompous for our own good most of the time. Consider this: No one has a problem with a nonlawyer president interpreting the Constitution. Ditto a nonlawyer congressperson. It's just a matter of convention that we expect lawyers to sit on the Court.

I guess I'm not seriously advocating that the POTUS appoint a nonlawyer, but there's a part of me that says, "Why not?" Heck, the clerks write everything for some justices, anyway. Just sit on the bench, decide what you think the result should be, and get some very smart clerk to write an opinion justifying your position. Behold, instant justice.