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Friday, July 29, 2005

THE FAIRNESS SEDUCTION: The anti-Roberts campaign are attempting to gain a moral advantage in the nomination fight by claiming to represent "fairness." What's amazing is that Roberts' supporters seem to be taking the bait — for instance, by releasing the 70,000 pages of documents (many of which were already in the public domain). Of course, that's not enough for Schumer, Kennedy, and Boxer; their goal being to defeat the Roberts nomination. They stand little chance of succeeding, yet it's hard to figure out why the White House succumbed to the demand to start releasing documents. NRO weighs in: “Having already given too much, [the president] should give no more.”
At issue here is an important principle that the Bush administration has, until now, consistently fought for: the necessary confidentiality of deliberations at the highest levels of the executive branch. If the candid internal discussions of high-ranking government officials are regularly disclosed, those discussions will quickly cease to be so candid. This is exactly what seven former Democratic and Republican solicitors general wrote when a similar fight over Justice Department documents arose in the context of Miguel Estrada’s nomination to the D.C. Circuit Court of Appeals: “Our decisionmaking process required the unbridled, open exchange of ideas — an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” Senators should have plenty to read between now and the time of Roberts’s confirmation hearing in late August or September. The White House should hold firm, and add no more to their reading list.
Almost certainly the senators now shouting loudest about documents have already decided to vote against Roberts. Their only real hope at this point is to poison the process as a means of driving down Roberts' margin of victory, so that he goes to the court surrounded by a cloud of controversy like Clarence Thomas. The Constitution spells out the Senate's role: to advise and consent. Every senator had a chance to advise the president, now each member must decide whether to give consent. "Fairness" means allowing the hearings to go forward, and then the Senate deciding — period.