Half Empty

Should we be grateful that liberal WaPo columnist E.J. Dionne denounced NARAL's televised assault on Judge Roberts? Only a bit. NARAL's scurrilous spot was sufficiently over-the-top to be condemned by the Washington Post. But, while leftists (and NARAL itself) plainly are embarrassed, they're mostly mad they were caught, and misunderstand the gravity of their error:

• NARAL's anti-Roberts "fact sheet" (still on its web site) retains the ad's lies, e.g., "John Roberts Excuses Lawless Conduct Against Women."



• The New York Times conceded NARAL was "unfair[]," but only because the "cheesy" ad "can only make it harder to get senators to pay proper attention . . . to legitimate concerns about Judge Roberts's approach to issues of personal privacy and reproductive freedom."¹ But the Times never squawked when prior nominees refused to answer similar Senate hypotheticals.² And the MSM attack machine's so animated, page 2 of Thursday's Times contained five corrections to previously published anti-Roberts stories, such as:

  An article on July 22 . . . referred incorrectly to his dissent in a case before the United States Court of Appeals for the District of Columbia Circuit, involving the arroyo toad. (The error was repeated in articles on July 23 and on Tuesday.) Judge Roberts said the court should rehear the case and consider whether the Interior Department had properly invoked the Endangered Species Act in this circumstance. He did not say the federal government lacked the power to block a California real estate development because it endangered the toad.

• Back to Dionne, who echoes the Times' notion that the ad "is a distraction from the core issues surrounding his nomination." In his view, canceling the ad should make "Roberts and the administration . . . more open about the issues that matter," and thus "release . . . all documents that would illuminate Roberts's career as deputy solicitor general from 1989 to 1993."
  
  Nonsense. Dionne ignores three established rules of law and ethics. First, unless the client is about to break the law, lawyers are bound not to "reveal information relating to the representation of a client unless the client gives informed consent [omitting other exceptions not relevant here]." That privilege is for the benefit of, and personal to, the client, not the lawyer. A government lawyer has the identical obligations, In re: Bruce R. Lindsey, 148 F.3d 1100 (D.C. Cir. 1998) ("[t]he definition of 'client' includes governmental bodies.").
  
  Second, in civil litigation, most "attorney work product" -- the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" -- is absolutely exempt from discovery and disclosure. Federal Rules of Civil Procedure 26(b)(3). This privilege, too, fully applies to government lawyers.
  
  Third, absent allegations of criminal conduct, "Executive Privilege" is a necessary component of the Constitutional separation of powers. It protects against disclosure of oral and written communications of Executive branch employees advising the President, as the Court acknowledged in United States v. Nixon, 418 U.S. 683, 708 & n.17 (1974):

  The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.<sup>17
  
  17</sup> "Freedom of communication vital to fulfillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure. . . [G]overnment . . . needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 325 (DC 1966).

  Most of these protections could be waived by the client, President Bush. But that's George Herbert Walker Bush, not the current President. As far as I know, Bush 41 hasn't waived any privilege.
  
  Dionne, along with the WaPo's editorial voice, seeks public disclosure of privileged information as if it were lawful and common. But here, no one claims criminality or any other recognized exception. (Armando on the Daily Kos site makes the same mistake, and wrongly relies on decisions involving criminal investigations.) Dionne and Armando doubtlessly -- and properly -- would be outraged by disclosure of, say, written advice from their personal tax lawyers. And though many call the paper a "union-buster," the WaPo hasn't published the advice of its labor lawyers. What's the difference?

Conclusion: Many leftists might concede the NARAL ad crossed the civility line. So it did--but that misses the point. The various privileges are designed to shield lawyer communications--to protect the little guy. And government decision making could seize and freeze were everything potentially, unpredictably, public--as Clinton and his supporters argued (with some justification) during the "Whitewater" investigation.

What's going on? The left's disregard of settled law is additional evidence of the inversion of today's political parties. Still more simply, in their half-witted zeal to preserve judicially-imposed Federalized abortion, Dionne and the left would burn privacy in order to save it. The anti-Roberts political witch hunt speaks volumes about the fealty of the left to the rule of law.

More:

Count WaPo columnist William Raspberry as "not embarassed," "If you're concerned about the rightward drift of the U.S. Supreme Court, you may be hoping -- as I am -- for a smoking-gun revelation that would disqualify John G. Roberts Jr."
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¹ The Times' editorial called Roberts' legal position a "tenable if unduly cramped reading of the law," though acknowledging six Supreme Court Justices sided with Roberts. By contrast, the Constitutionally un-tenable abortion "right" causes no cramps in Times Square.

² In her 1993 confirmation hearings, without objection from the Times, Judge Ruth Bader Ginsburg refused to discuss her view of current law:

Senator Metzenbaum. My question to you is: How would you view an antitrust case where the facts indicated that there had been anti-competitive conduct but the defendant attempted to justify it based on an economic theory such as business efficiency?

Judge Ginsburg. I am not going to be any more satisfying to you, I am afraid, than I was to Senator Specter. I can answer antitrust questions as they emerge in a case. . .

Senator Leahy. Does that mean that the Free Exercise Clause and the Establishment Clause are equal, or is one subordinate to the other?

Judge Ginsburg. I prefer not to address a question like that; again, to talk in grand terms about principles that have to be applied in concrete cases. . .

Senator Leahy. But there are instances where both cannot be upheld.

Judge Ginsburg. Senator, I would prefer to await a particular case and--

Senator Leahy. I understand. Just trying, Judge. Just trying.

Hypocrites.

(via Powerline; MaxedOutMama; Best of the Web)