But what can one say — it’s show business, and as unreal as a play. The time
must come when Democrats and Republicans, liberals and conservatives realize
that they have created a farce in how the confirmation process transpires in
the years since Bork.
For example, when the Democrats on the Senate Judiciary Committee questioned John Roberts and Samuel Alito about their legal memos when they worked in executive positions as government lawyers, they were scolded by critics for invading the executive privilege and attorney-client relationships. Now when Republicans question Kagan about her intra-departmental records as solicitor general, she can point in her own defense to their earlier protestations.
I supported the distinction in the Roberts and Alito situations between predecisional, deliberative communications by government attorneys, and government positions once formalized. The former should be privileged, the latter not. Government officials — I was an attorney in the Air Force JAG and the Department of Justice, and so am sensitive to the distinction — must feel free to conduct open, freewheeling conversations as policy positions are thrashed out internally without fear of later disclosures. Most states provide a conditional deliberative-process privilege. In my 2009 book, In Confidence, I wrote, and I believe it covers the Roberts-Alito as well as the Kagan situations: Intra-governmental deliberations, evaluations, expressions of opinions and recommendations on policy and decisionmaking must be privileged in order to promote the free flow of ideas in government and to assure the integrity of the decisionmaking process.
Here again the comes-around, goes-around nature of policymaking can hit senators in the mouth as they pursue the very political theater of confirming Supreme Court nominees. It won’t be long before senators can exchange lists of probing questions with their political opposites and nominees can reuse the scripts of earlier nominees dodging those same questions with the same vacuous answers.
Even nominee Kagan wrote in one of her rare past comments on public issues that the whole confirmation process needs to be made real and relevant to the decision before the Senate. Sadly, we can expect her to avoid such candor when she has her chance to put her nomination on the line.