The rules of the game

Walter Dellinger, a top ranking lawyer in the Clinton administration, has a piece in today’s Washington Post about the proper limits, if any, on the right of Senators to question Supreme Court nominees and to discover memos they wrote as government attorneys. Dellinger argues for a broad right to ask nominees directly about how they view controversial legal matters. I agree in principle with the following statement by Dellinger on the subject:

There are legitimate concerns that should make some questions off limits, such as a question about an actual case coming before the court. More generally, nominees should answer questions about past cases and not future ones. And everyone involved in the process should make clear that by answering questions about his views on contentious legal and social issues such as abortion or affirmative action, the nominee is not making any commitment about how he or she would vote on any future case. A nominee may well come to a different view after having read the briefs and heard arguments or may find that his general views do not determine how to resolve the issue raised in a particular case. But with that important understanding, there is no reason why a nominee cannot answer questions that will give senators a meaningful sense of what kind of person the nominee is.

But here’s the problem — this is not how the Democrats have played the game. Ruth Bader Ginsburg, under the guidance of Senator Biden, basically took a “name, rank, and serial” approach during her hearing, refusing time after time to discuss her views on substantive issues. To me, this establishes the rules under which the Roberts hearings should proceed. We can’t have one set of procedures for Democratic nominees and another for Republicans. Everytime the Democrats pollute the confirmation process, they set a precedent that Republicans have a perfect right to follow, and they should follow the Ginsburg precedent.
On the matter of access to records, Dellinger reverses course. Previously, he had signed a letter, along with all other living former Justice Department solicitor generals, stating that memos written by court of appeals nominee Miguel Estrada as an assistant to the solicitor general were properly withheld from the Senate because releasing such confidential documents would unduly chill the candor of analysis by Justice Department lawyers. But Dellinger argues that Roberts is different because (a) he was appointed to his government lawyer job and (b) he is a Supreme Court nominee. The first point strikes me as a distinction without a difference. The solicitor general needs as much candor from lawyers appointed by the president as he does from career civil servants. The second point is just another way of saying that this nomination means too damn much to let principle govern its treatment. The wages of this approach are described in the paragraph above.
UPDATE: Several commentators have noted that Dellinger stops just short of saying that Roberts’ work product for the solicitor general should be produced, saying instead that he thinks it will be produced. Why did Dellinger frame his op-ed this way? One of Ed Whelan’s readers at NRO’s Bench Memos offers this theory:

Because his op-ed is a political, not a legal document. The Dems have had no credible response when confronted with the former SGs’ letter. . . they needed a talking point! Dellinger has given it to them. You watch. Shortly the Dem pols and strategists will start saying the memo is no longer operative. They’ll “quote” Dellinger as saying this case is different and the docs should be released in Roberts’ case. Dellinger won’t come forward to correct the record. Voila! The letter is “inoperable” and Dellinger has avoided any hard questions about his “contradictory” positions.


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