Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Democratic-controlled Senate Judiciary Committee holds up the nomination of a conservative Republican to a circuit court, making an extraordinary demand to see a pile of confidential Department of Justice memos. The administration vows to resist, promising a fierce clash between the executive and legislative branches over privilege. It happened 14 years ago, in 1988, and it’s happening again now. In mid-May, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., asked the Justice Department for copies of “appeal recommendations, certiorari recommendations and amicus recommendations” that nominee Miguel Estrada wrote while working in the solicitor general’s office in the 1990s. Now, with the dispute beginning to take shape, Leahy’s ploy has dramatically escalated the stakes in the judicial nomination game. And one consequence could be a death blow to Estrada’s nomination to the U.S. Court of Appeals for the D.C. Circuit. The Bush administration has not yet replied to Leahy’s letter. But it is expected to deny the senator’s request on privilege grounds. That move could prove risky. Ordinarily, when the executive branch asserts privilege against a demand from Congress, the executive has the upper hand. With judicial nominations, though, Congress holds the trump card. “They can simply say, ‘Fine, don’t produce the documents. We just won’t proceed with the nomination,’” says George Washington University Law School professor Todd Peterson, a former deputy assistant attorney general for legal counsel. “The executive branch is then stuck with a difficult dilemma: either produce the documents or lose the nomination.” Charles Cooper, who was assistant attorney general for legal counsel in the Reagan years, says that even when the privilege claim is strong, disputes of this type normally are worked out amicably. “Nine out of 10 of these [interbranch disputes] are resolved through a negotiation in which both sides have their interests satisfied, or at least both can save face,” says Cooper, now a partner at Washington, D.C.’s Cooper & Kirk. But Cooper, who is personally close to many current administration officials, says this Justice Department and this White House may, on principle, be disinclined to back down. The Bush administration has cited similar concerns in resisting congressional efforts to get internal documents related to its energy task force, and has even withheld papers on the campaign finance probe from the Clinton years. “This president is committed to his belief in the policy that underlies executive privilege and in his assessment that it is an essential feature of the presidency,” says Cooper. “This will not be an easy prerogative for this president to compromise.” There is at least one counter-example. Last summer, the administration resolved an impasse with the Senate Environment and Public Works Committee over the nomination of Jeffrey Holmstead for a high post at the Environmental Protection Agency. It permitted committee staffers to review memoranda that Holmstead wrote while in the White House counsel’s office under the first President Bush. If President George W. Bush takes a harder stance here, there could be political fallout. Sen. Leahy has promised that Estrada will get a confirmation hearing this year. If the administration withholds the documents Leahy demands, Leahy could feel he has the political cover he needs to delay the Estrada nomination further. Alternatively, Republicans could try to portray the chairman’s tactics as overreaching. Pressure from senators could force Leahy to back down, obtain the information he wants about Estrada in some other way, and hold the hearing that he promised. A partner in the D.C. office of Los Angeles’ Gibson, Dunn & Crutcher, Estrada was nominated more than a year ago. He is highly regarded as a conservative thinker and experienced litigator. If confirmed, he would be the first Hispanic to ever sit on the D.C. Circuit. Some see him as a potential U.S. Supreme Court nominee someday. Many liberal activists oppose or are skeptical about Estrada’s nomination. Liberals say the documents will help them assess Estrada’s fitness to be a judge. “Particularly at this time, when the courts are so bitterly divided on constitutional theory and when the president is committed to selecting nominees of a particular ideological camp, it’s important to inquire whether a nominee approaches legal questions in an open-minded and impartial manner,” says Peter Shane, a constitutional scholar at Carnegie Mellon University in Pittsburgh. Estrada declines comment. Whatever the outcome of the contretemps with Leahy, the document demand may cast a shadow on other potential judges. Several pending appellate nominees — including John Roberts Jr., Carolyn Kuhl and Michael McConnell — also served in the solicitor general’s office and could be hit by the same demands from the Senate. Randolph Moss, who was assistant attorney general for legal counsel in the Clinton administration, says, “The nomination process is difficult enough as is. Now, if you’ve ever had to provide confidential advice, you can be held up in confirmation.” Presidents of both parties have consistently embraced executive privilege, especially for papers written by people such as Estrada, who were not political appointees. “The department is always very reluctant to hand over a line attorney, either as a witness or with documents,” says Peterson. C. Boyden Gray, who was White House counsel to the first President Bush, says, “You can’t get more into the core of a presidency than these documents that give advice about how the law will be argued in the Supreme Court. I’d be shocked if the White House turned anything over.” Moss, a Democrat who is Gray’s partner at D.C.’s Wilmer, Cutler & Pickering, agrees. “These documents are the essence of privileged communications,” says Moss. “The government can’t turn them over without creating a terrible precedent.” Another former high-ranking Justice official takes issue with this assessment. “Although it’s generally not a good idea to share internal memos with Congress, when someone is being considered for a lifetime judgeship, it’s fair to be able to look at the totality of a person’s record to see if he or she is competent to be a judge, and that may include his or her writings,” says the former official. This source cautions that scrutiny of such memos should be limited to a few senators and staffers — and that the nominee should be vetted only on the legal skills reflected in the documents. The Supreme Court hasn’t directly tackled the privilege issue since the 1974 Watergate tapes case, which dealt with the unusual instance of a criminal probe of a sitting president. It is considered unlikely that the Estrada conflict will spill over into the courts. The dispute will likely remain in the political sphere — where many Republicans are questioning Leahy’s motives. “Are the criteria he is using based on the fact that Estrada is Hispanic?” Gray wonders. “Have they ever asked for this material for any other nominee? Are they asking for John Roberts’ memos?” A Republican Senate aide says he does not believe Leahy wants the Estrada documents for the purpose of evaluating the nominee’s credentials. “Leahy made a promise that he would hold a hearing for Estrada,” says this staffer, “and now he doesn’t really want to do it. He knows that if he puts Estrada on the D.C. Circuit now, he could be a Supreme Court nominee if a justice steps down right after the [2002] election. So it’s a delaying tactic.” David Carle, a Leahy spokesman, replies, “There is ample precedent for this request, and the work of the department has not been harmed by past requests. These cases were closed long ago, and examination of the historical record would not interfere with the current work or positions of the government.” Carle also says that GOP senators sought arguably more-intrusive information from Clinton nominees, such as positions they had taken on behalf of pro bono clients and, in one case, whom the nominee had voted for at the polls. In response to Gray’s charges, Carle says, “It is the latest outrageous charge from Mr. Gray,” who has been critical of the Senate’s actions regarding Bush’s judicial selections. PAST AS PRELUDE If both sides are willing to give a little, the flap 14 years ago may prove a model for resolving the Estrada matter. During the Reagan administration, then-Senate Judiciary Committee Chairman Joseph Biden Jr., D-Del., sought internal memos from Justice in connection with the stalled 9th Circuit nomination of Justice Department official Stephen Trott. Biden and others wanted documents concerning DOJ’s decision not to recommend an independent counsel probe of Faith Ryan Whittlesey, a former ambassador to Switzerland. Trott was associate attorney general, and although the senators didn’t know if he was involved in the Whittlesey matter, they weren’t moving the nomination forward until they saw the documents. The Justice Department balked. Then-Sen. Alan Simpson, R-Wyo., broke the logjam with a plan in which Justice turned over three memoranda for private review by Judiciary members and by three staffers for each side. Eventually, Trott was unanimously confirmed. Trott, still a sitting judge, recalls the events well. “I told [then-Attorney General Edwin] Meese not to give them a damn thing,” says Trott. “I told him I’d rather not be confirmed than see this happen. I was sick of being extorted.” A similar flap erupted briefly and was settled quietly in 1986, when then-Justice William Rehnquist was nominated for promotion to chief justice. The Reagan Justice Department let Senate staffers read some of the legal opinions that Rehnquist had crafted when he headed the Justice Department’s Office of Legal Counsel in the Nixon administration. An official of a former administration familiar with the nominations process has a different suggestion for the Estrada standoff. “If I were advising the White House,” says this person, “I’d say to just reach out to the committee and send Estrada up there to talk with them confidentially in a private session. I think the administration is losing sight of the nature of the game, which is to get Estrada confirmed, not to win some abstract contest.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.