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From The Mailbag

Estradifying Roberts

Almost from the moment that President George W. Bush named DC Circuit Court of Appeals Judge John G. Roberts, Jr., 50, to replace retiring US Supreme Court Justice Sandra Day O'Connor two things happened simultaneously.

First, the liberals on the Judiciary Committee who had previously promised that any Bush nominee to the right of Vladimir Lenin would be in for a fight—if not a filibuster—were suddenly more accommodating as they pledged not to "prejudge" the president's choice. Second, the advocates of the far left who believed Bush was giving away a seat on the high court to a man that is reserved for a "moderate" woman, were out in force. NOW demanded that Bush either withdraw Roberts, or that the Senate Judiciary Committee reject him in favor of a woman—just not someone like Janice Rogers Brown whom Bush appointed to the DC Circuit Court of Appeals after the formation of the Gang of Fourteen, or Priscilla Owens who was given a slot on the 5th Circuit Court of Appeals at the same time.

Within a few hours of the announcement, NOW (National Organization of Women) had mobilized a demonstration in front of the Capitol, suggesting that whomever Bush picked was going to be vilified by the left. The coalition of women's right and abortion advocates are convinced that Rogers', like every other GOP nominee to the federal court, will single-handedly overturn Roe v Wade. While Roberts served in the Justice Department and argued cases on behalf of both President Ronald Reagan and Bush-41, there is nothing in his record as an appellate court judge for liberals to oppose.

Nan Aron, whose group, Alliance for Justice, was one of the key forces that torpedoed former US District Court Judge Robert Bork, has taken a wait-and-see attitude about Roberts since his pubic record is so thin. Ralph Neas, president of People For an American Way, a far left ultra-liberal group, described Roberts as "...Antonin Scalia in sheep's clothing." MoveOn.org, like PFAW isn't waiting for the wolf to emerge after his confirmation since, as Sen. Ben Nelson [D-NE] said, "Going in, this looks good...[but]...This is a lifetime appointment. There's really no room for 'oops' here." (The GOP understands "OOPS" all too well. They appointed David Souter.)

Also working the crowds on Pennsylvania Avenue are NARAL, Americans United for Separation of Church and State and Planned Parenthood, each of whom oppose Roberts because of what they believe are his private views on abortion, school prayer and anything else that Christian conservatives are in favor of. MoveOn.org has been gathering signatures to oppose the appointment of Roberts from the moment of Bush named him to the court. Once again, the Democratic Party is using the liberal 527 groups to do its dirty work to skewer public opinion to discredit Bush's judicial nominees. It did not matter whom Bush selected, it was going to be business-as-usual with the Senate liberals who simply don't get it. They aren't going to be able to successfully filibuster Judge Roberts and keep the privilege. The Democratic leadership believes the public can be snookered—once more—into believing that the 527s they used in the Election of 2004 aren't working hand-in-glove with the DNC and the Senate leadership to stonewall Bush's judicial nominees. Once the public begins to believe Roberts is hiding some deep, dark secret in the memos and legal opinions he proffered while working in the Justice Department, they will be able to filibuster his nomination until the Bush Administration surrenders the documents they have requested.

While most of the Democrats view Judge Roberts as a nominee who will be hard to beat, none of them are willing to concede his appointment without a fight. Sen. Edward Kennedy, who would rather cut off his right arm than vote "yea" for any conservative judicial nominee, parsed his words carefully—knowing that a cloture vote would immediately bring Robert's nomination to the Senate floor for an up or down vote. Kennedy made it very clear to reporters that he would not "...prejudge the president's nominee."

Even Democratic National Committee Chairman Howard Dean acted cordial, saying that it was time the Democrats reached across the aisle to the pro-lifers. On the other hand, Judiciary Committee member Chuck Schumer let it be known that Roberts' nomination would not be a cake walk when he said only that he had a lot of questions—60 or 70 of them—for Roberts, whom, he said, is just not as transparent as most Supreme Court nominees, who have years of judicial decisions to examine for their ideological slant. Roberts does not and is, therefore, not transparent enough for the Senate—thus, the list of questions

The very short public record of Judge Roberts —and the even longer not-so-private record of Justice Department attorney John C. Roberts, Jr. is now under the microscope. But without much to grab hold of in Roberts case, it appears that the strategy the Democrats will use will be Roberts' refusal to provide political documents that give the Committee a widened perspective of Roberts' ideological beliefs and how he would likely vote on specific issues.

At issue are any internal advisory memos Roberts may have authored when he was with the Justice Department that will reveal his judicial philosophy. When Judiciary Committee member Chuck Schumer [D-NY] met with Roberts last week, he asked for copies of any legal memos he may have authored while he was with the Justice Department. Roberts told Schumer that decision to release of such documents—as has always been the case—is soley at the discretion of the White House.

As a matter of historic protocol, internal advisory memos from presidential advisors to the President are construed to be outside the grasp of Congress since by giving Congress oversight authority over the Executive Branch violates the separation of powers. Thus, every court—except during the Nixon impeachment investigation—has ruled the confidentiality shield between the President and his advisors are as sacrosanct as attorney-client privilege.

During the Clinton years, GOP members of the House and Senate ultimately took the White House to court in an attempt to get several advisory memos.

The federal courts ruled that that such advisory memos are shielded by the separation of powers, and since Congress has no jurisdiction over the Executive Branch, they have no right to see any communiqué between the president and his advisors since the decisions made by the chief executive are based on the advise he receives from his department heads and their subordinates.

The liberals know this, of course. The reason for asking is to create the illusion that they have caught Roberts doing something wrong and the refusal to turn over White House documents is to prevent some scandal the Bush Administration has kept under wraps from exploding on the front page of the morning paper or on the evening news—at which time the 527s parked along the curb outside of Congress will start screaming that Roberts is concealing something that would disqualify him from serving on the high court. Properly fanned by the media, this might give Senate Minority Leader Harry Reid and Chuck Schumer, Ted Kennedy and Barbara Boxer the cover they need to filibuster the nominee—just as they did Miguel Estrada whose appointment to the 10th Circuit Court of Appeals was stonewalled until, after two years, Estrada withdrew his name.

Democrats used the same technique to keep John R. Bolton from getting an up-or-down vote as UN Ambassador. The Democrats "Estradified" him. Estrada, who worked for Solicitor General Ted Olson before being appointed by Bush to fill a slot on the DC Circuit Court of Appeals was nominated in May, 2001 and should have easily won confirmation—except for the fact that he was a Republican Hispanic in a world where the Democrats present themselves as the sole caregiver of all minorities. The liberals should have loved Estrada anyway since he was one of the cofounders of the United Farm Workers with Cesar Chavez—along with Dolores Huerta. However Huerta, who now runs the Mexican-American Legal Defense and Education Fund believed Estrada would singlehandedly dismantle the Latino labor movement.

It was the advocacy of MALDEF and other liberal groups that convinced the Senate Minority Leader Tom Daschle [D-SD] to filibuster Estrada. To justify the filibuster, the Democrats demanded virtually every document from the Solicitor General's office that had been written by Estrada, or for which he had written an opinion. Daschle did so knowing, first, he had no constitutional right to view any of those document; and second, he knew the no president could afford to create a legal precedent by surrendering documents to Congress that would give oversight rights of the Executive Branch to Congress which Congress does not constitutionally possess.

Very few Americans understand how the separation of powers works in this country, and what authority Congress actually possesses—and does not possess. The Constitution does not give Congress oversight rights of the Executive Branch, nor does it have oversight authority over the Judicial Branch. They are coequal. But, somehow, when Congress demands documents they are not entitled to, and the White House refuses to give them up based on the constitutional separation of powers, the American people are told by liberal talking heads and advocacy groups like NOW, People For an American Way, NARAL and MoveOn.org that the White House is engaged in illegal stonewalling tactics—and the American people can be expected to believe it for no other reason than that they believed it every time the liberals used the same ploy in the past.

The Democrats are only one vote short of controlling the majority opinion on the court for the next 20 years. As they play bipartisan games in front of the TV cameras and in their photo ops with the press, they have constructed a strategy they are convinced will cause the media to tar and feather whatever nominee Bush offers until they are able to either drive Bush's selections far enough to the left that they will be ideologically in the center, or center-left, in order to fill the vacancies on the high court.

But that will only happen if Chief Justice William Rehnquist dies from his thyroid cancer or becomes so incapacitated that he feels obligated to resign. The liberals can afford to lose one seat on the high court, but not two. If the conservatives are successful in seating Roberts, the Democrats will have replaced O'Connor with a centrist judge who will likely vote to abolish partial birth abortions (which are performed to provide researcher with stem cells and hospitals with neonatal body parts). If the liberals can block Roberts' appointment and if Bush offers Attorney General Alberto Gonzales as an alternative, the Democrats will snap him up. From that point on, it won't matter who Bush names to replace Rehnquist since the liberals will have solid control of the high court. Of course, 6 to 3 victories are better than 5 to 4 decisions, but 5 to 4 is still a win. And, as long as you win, the margin of victory is less important than the taste of victory.

To short-circuit the Democrat's planned strategy of demanding all of the relevant documents containing the statement s and views of John G. Roberts, Jr. was deputy White House advisor during the Reagan years, the Bush Administration released some 15,000 pages of documents from the National Archive and delivered them, with much fanfare, to the Senate Judiciary Committee on Tuesday. Within minutes, Senate Minority Leader Harry Reid and Ted Kennedy—without opening a single box—spoke to the assembled media and said that the files had been delivered to the Senate were not the papers the Senators wanted to examine. Reid said the files which had been delivered were probably files that had already been released to the public or were about to be released. The files they wanted to see were the confidential documents that remain classified or those which are protected by attorney-client privilege and cannot be released for scrutiny. Kennedy insisted the only documents Senate Democrats were really interested in seeing were those written by Roberts when he was assistant Solicitor General during the Bush-41 years. If the Bush-43 White House had turned over every piece of paper Roberts had even scribbled a phone number on during all of his years of government service, the Democrats would be insisting to the media that Bush was hiding information that would reveal the secret extremism of Judge John G. Roberts, Jr. It is important for the reader to understand that the Senate liberals do not want to see those documents. If Bush were to release them, they would simply demand something Bush could not give them because, in simple terms, the idea is to stonewall his nomination. To successfully filibuster Roberts, they must have cause. If the Bush Administration gives them what they demand, they have to means by which to justify a filibuster, and the Gang of 14 will be obligated to vote to suspend the right of filibuster on judicial nominees.

Once again you have my two cents worth.