Dellinger’s Weather Vane Imitation

In a column in the Washington Post, former Solicitor General Walter Dellinger does his best impression of a weather vane, swinging at the direction of the hot air blowing from liberal interest groups.

In 2002, Dellinger signed a letter, along with all of the other living former Solicitors General, urging Senate Democrats to drop their request for the internal work product created by Miguel Estrada, when his nomination to the D.C. Circuit was being considered by the Senate Judiciary Committee.

In the letter, Dellinger said:

The Solicitor General has the responsibility of representing the interests not just of the Justice Department, nor just the Executive Branch, but of the entire federal government, including Congress.

It goes without saying that, when we made these and other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys. … Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decision making requires candor, and candor in turn requires confidentiality.

Any attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests -- a cost that also would be borne by Congress itself.

Today, echoing anti-Roberts interest groups on the Left, Dellinger implies that Roberts’ work product from the Solicitor General’s office should be released, a request that the White House has properly rejected. But in making his case, Dellinger recognizes that his 2002 letter illustrates his weather vane-like change of heart, so he’s inserted this:

Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn't any federal judgeship but the Supreme Court itself.

Paul Mirengoff at the blog Power Line isn’t buying it and succinctly disassembles Dellinger’s attempt to justify the Left’s document-focused wild goose chase:

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.

We would go even further.

As a non-lawyer, it’s often hard to translate sticky questions of legal ethics and confidentiality out of legalese. This is not one of those times. Our justice system relies on an adversarial system where lawyers make their cases in court. And the Solicitor General and his staff are responsible for representing the government of the United States before the highest court in the land. Forcing the confidential deliberations and discussions of the government’s top litigator into the public domain wouldn’t just be a disservice to Judge Roberts. It would be a breach of the responsibility that the attorneys in the S.G.’s office have to their client -- the government of the United States and the American people who constituted it.

Some in the Senate are urging the White House to say, effectively, “It’s okay. Go ahead and let the government’s lawyers breach that responsibility. We’re part of the government, and we think it’s a fabulous idea.”

That point of view couldn’t be more shortsighted, and it reveals, yet again, the real political, obstructionist motive that underlies the request. If the White House were to allow the S.G. documents to be released, a precedent would be set, and sometime in the future, when the practical effect of the disclosure is much more significant, the request will be made again.

We are glad that the White House is willing to stand on principle and protect the legal interests of the American people, not just for today, but in the future as well.

More important, the Democrats, especially Senators Leahy and Schumer who are both attorneys, ought to know better than to make the request in the first place. The fact that they have done so anyway demonstrates, yet again, that when it comes to their crusade to block judicial nominees, they really are without shame.