- The Washington Times - Saturday, August 6, 2005

It’s unlikely anyone will find anything serious to question in the only 40 or so opinions The Hon. John G. Roberts Jr. has handed down in his still brief tenure as a federal judge; he is known, and respected, as a craftsman in his profession.

The reflexive opposition to any nominee of this president who looks suspiciously like a conservative will have to try some other tack. For example, the loaded question, as in: “Are you now or have you ever been a member of the Federalist Society?”

The Federalist Society is a loose-knit group, mainly of law professors and students, started years ago in reaction to the political correctness that once was, and maybe still is, the reigning ideology at the more ossified American law schools.

But any connection to the Federalist Society can be made to sound sinister. Even if many of those who wrote the original Constitution of the United States would have had to plead guilty to being card-carrying Federalists. But these days John Adams and Alexander Hamilton, not to mention George Washington, would doubtless be attacked as … Federalists. Not to say revolutionaries.

Nothing brings out the McCarthyism in Democratic kneejerks like a judicial nominee they don’t really have anything on. If calling the man a Federalist doesn’t work, there’s always guilt-by-association. This nominee, it turns out, was a deputy solicitor general in the first Bush administration to … Kenneth Starr. Horrors.

If that doesn’t work, and it won’t, John Roberts’ inquisitors can always demand this administration produce various confidential memos, drafts or just stray notes he might have written while serving in the solicitor general’s office. His critics know full well no administration would open its most sensitive deliberations to such a fishing expedition, lest it jeopardize executive privilege for all administrations to come.

Nor would any conscientious lawyer violate the lawyer-client privilege by revealing what advice he gave his client. Especially if the client is the U.S. government and the advice was about legal strategies to follow to protect its interests.

Imagine the chilling effect on deliberations within the government if its lawyers knew any counsel offered in confidence might be rolled out against them years later if they were up for a judgeship. But if it declines to produce those memos, the administration — and its nominee — can be accused of hiding something, of orchestrating … a cover-up.

It’s a cheap tactic, but it’s been known to work. It was used to derail Miguel Estrada’s nomination to the appellate bench. Not only was he a brilliant lawyer and a Republican comer but, worst of all, Hispanic. And his critics found the combination intolerable. They weren’t about to give George W. Bush credit for promoting to the judiciary someone so clearly qualified and so appealing to Hispanic voters.

And so a sustained, and successful, campaign was launched against young Mr. Estrada. This deprived the American judiciary of a bright prospect. The ultimate victim of that filibuster by another name was the quality of American law.

Sure enough, many of the same senators who kept Miguel Estrada off the bench now propose to Estradize the nomination of John Roberts by demanding a peek at confidential papers he is not free to release. They’ve used the same low tactic against John Bolton, the most promising nominee for U.S. ambassador to the United Nations since the equally feisty Daniel Patrick Moynihan shook up the place — and very much needed to.

To send Mr. Bolton to the U.N., the president used his constitutional authority to make recess appointments while Congress is out of session. What a pity the Democrats have no Wendell Willkie, an outstanding loyal opposition leader who will support a wartime president rather than harass his appointees.

It’ll be interesting to see if this willful minority in the Senate has learned anything from the opprobrium it heaped upon itself in the Estrada affair. Except how to sandbag another nominee.

The games have only begun. Soon we’ll hear about other grounds for groundless suspicion of this nominee — his faith, his clients, his wife, her clients … any excuse will do.

Paul Greenberg is a nationally syndicated columnist.

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