Posted by
On the Right on Thursday, July 31, 2008 5:47:38 PM
Interpolation Substitutes for Interpretation
Federal district judge John Bates held today
against the motions of Harriet Miers and Joshua Bolten to dismiss
subpoenas from the House Judiciary Committee. I have only begun to
read Bates' 93-page opinion (PDF file), and
I haven't decided whether he was right or whether the Bush White
House's claims to shield them behind executive privilege will fare
better on appeal.
But I can say that one knows one is in for a
long slog through a lot of wheezing, clanking, tired rhetoric about the
high importance of the judiciary's functions when the judge can't get
past page 2 without quoting Marbury v. Madison (out
of context, of course) for a proposition broader than the case will
sustain. And when you get to page 3, you know that interpretive
shortcuts are being employed. There Judge Bates quotes the venerable
(if somewhat overdone) opinion of Chief Justice Burger in the famous
Watergate case of U.S. v. Nixon (1974):
neither
the doctrine of separation of powers, nor the need for confidentiality
of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial [or
congressional] process under all circumstances.
Those
are Judge Bates' square brackets, introducing "or congressional" where
Burger said no such thing. It should go without saying, but evidently
it doesn't, that the position of the executive branch vis-à-vis
judicial process in a criminal case, as in Nixon, and vis-à-vis congressional process in a politically charged scandal hunt such as the Miers
case, are not necessarily the same thing. And the position of the
judiciary with respect to the issues in these two different kinds of
cases may properly be very different indeed.
Bates' interpolation
is breezy and presumptuous. But it's a perfectly natural move when you
begin with the historically dubious assertion that it is the
"fundamental role of the federal courts to resolve the most sensitive
issues of separation of powers."