Here we go again: Lights, camera, theater

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.

Visit www.RonaldGoldfarb.com.