Opening Move by the White House on Roberts

Position. Position. Position. Chess games and battles are won by control of the field of engagement. What determines this control? Position. The Associated Press covers the story here. The White House has moved the Democrats into the position they want to take--and the one the Administration wants them to be in. I stated before that the first tactic the Senate Democrats will likely take is to demand information, information, information. The Administration gives the appearance that they won't hand over some of that information:

Citing privacy and precedent, the Bush administration indicated Sunday it does not intend to release all memos and other documents written by Supreme Court nominee John Roberts when he worked for two Republican presidents.

The leading Democrat on the Senate Judiciary Committee, which will conduct hearings on Roberts' nomination, disputed the assertion that privacy was at stake and called such a position a "red herring."

Roberts worked in the Reagan White House counsel's office from 1982-1986. He also was principal deputy solicitor general in the administration of the first President Bush.

Fred D. Thompson, the former Tennessee senator who is guiding Roberts through the nomination process on behalf of the White House, said material that would come under attorney-client privilege would be withheld. He contended that previous administrations, both Republican and Democrat, have followed that principle.

"We hope we don't get into a situation where documents are asked for that folks know will not be forthcoming and we get all hung up on that," Thompson told NBC's "Meet the Press."

Already, two of the Democratic members of the Judiciary Committee that I identified before have now gone public with doubts concerning the Administration's decision:

Vermont Sen. Patrick Leahy, the senior Democrat on the Judiciary Committee, said other nominees, including Chief Justice William H. Rehnquist, have provided material they wrote in confidence while working in the Justice Department.

"It's a total red herring to say, 'Oh, we can't show this,'" Leahy told ABC's "This Week." "

"And of course there is no lawyer-client privilege," he said. "Those working in the solicitor general's office are not working for the president. They're working for you and me and all the American people."
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Contending that documents could be an important part of the confirmation process when little is known about a nominee, Durbin said, "A lot has to do with whether or not you can fill in the empty vessel with the information that tells you about this person."

The third trouble-maker, Senator Charles Schumer, tips his hand once again: he wants a justice with the politically-correct judicial philosophy:

Another Judiciary Committee Democrat, Sen. Charles Schumer of New York, said the goal is to learn about Roberts' judicial philosophy and method of legal reasoning.

"This is not a game of 'gotcha,' and document requests and, in general, information requests, are not an end, a goal to prove something," Schumer said. "They're a means to simply determining Justice Roberts' judicial views. That's all we want."

The key to the White House strategy is to box the Democrats into the position where the Senate votes up and down on Roberts as the nomination--with or without their cooperation. The current tactic baits those Democrats on the Judiciary committee into appearing reactive and partisan, all before the committee has requested any information. Mr. Thompson spoke very tongue in cheek when he said, "We hope we don't get into a situation where documents are asked for that folks know will not be forthcoming and we get all hung up on that." That's exactly what the Administration is counting on the Dems to do.

The trouble is that if they do, their obstinance will backfire on them. Ordinary people understand the importance of Attorney-Client privilidge. They also realize that communication between subordinates and superiors depends on discretion in order to ensure honesty. If the Democrats go ballistic on the non-disclosure of such confidential matters, they'll appear out-of-step to the mainstream of society. Even if the law is on their side. Thus, the Bush Administration can paint them as the partisan and idealogues that they accuse the President of nominating to the Bench. The Administration can decry the obstructionist tactics of the Democrats and call their bluff on whether they'll consider judicial philosophy as an "extraordinary circumstance." I doubt that the seven republicans on the "Gang of Fourteen" would favor a filibuster of Roberts' nomination on these grounds, if Senator John McCain's views represent the other six: "If we're going to set a precedent that those communications between someone who works for the president and the president of the United States are some day going to be made public, I think it could have a real chilling effect on the kind of candor in communications that people would have with the president," McCain said.

The White House has already positioned the Democrats into a lose-lose situation. The irony is that it's the position the Democrats evidently wanted to be in! Position. Position. Position. So far, the White House controls the center.