Wampum

(Note: I began writing this last night, and despite the fact that Bush has in fact nominated Alito, most of it is still relevant.)

Rumors abound that George W. Bush, in order to "change the subject" from the LeakGate scandal, will nominate a new associate Supreme Court Justice tomorrow to fill the spot previously filled by Harriet Meirs. Conservatives are all a twitter over their apparent "victory"; they flexed their muscle over Miers' purported lack of a far-right paper trail, and Bush blinked. They are now expecting that Bush will heed their warnings, and go as far to the Right as Ghengis Khan.

The actual names being bandied about, in no particular order, are Edith Jones, Michael J. Luttig, Alberto Gonzales, Priscilla Owens, Janice Brown, Michael McConnell, Alice Batchelder, Samuel Alito, Jr., Maura Corrigan, Emilio Garza, J. Harvie Wilkinson III, and Edith Brown Clement. I've probably missed one or two, but these are the biggies.

What many Conservatives appear to have missed, however, in the past two recent SCOTUS nominations, John G. Roberts and Harriet Miers, was that Bush placed something else above his supposed Conservative principals: Himself. Or more precisely, his family.

What both Roberts and Miers brought to the table, besides a scant paper trails, was their history of loyalty to the Bush Clan. Roberts earned his stripes while Assistant Solicitor General (under Ken Starr) in his decision not to appeal the overturning of the convictions of Iran-Contra central figures, John Poindexter and Oliver North. Miers' fealty really needs no further discussion.

Why do I believe that loyalty trumps ideology in Bush's world?

The answer lies in a mostly forgotten executive order Bush signed on November 1, 2001, taking advantage of the popularity the American public bestowed upon him in the wake of 9/11. Executive Order 13233 gives all present and former presidents since 1980 full veto authority, in perpetuity, over access to their presidential papers.

This order renders useless the Presidential Records Act of 1978, one of the few lasting laws to be enacted in the wake of the Watergate scandal.

The PRA mandates that the Presidential records of an Administration be transferred to the legal and physical custody of the National Archives and Records Administration (NARA) immediately upon the end of the President's last term of office. The Archivist of the United States is given the "responsibility for the custody, control, and preservation of, and access to, the Presidential records of th[e former] President." 44 U.S.C. § 2203(f)(1). The PRA also requires the Archivist to appoint a Library Director in "consultation with the former President." Id. § 2203(f)(2). The Library Director balances archival and public access considerations with national security, confidentiality, and privacy concerns.

David Carlin, National Archivist, before Congressional Committee, November 6, 2001

According to Vanderbilt historian Hugh Davis Graham:

At the heart of the PRA are two provisions. First, presidential records after 1980 would no longer be the property of individual presidents, but would be owned by the American government and held by the National Archives in trust for the American people. The Archivist of the United States was made custodian of the records and given an "affirmative duty" to make them available to the American public as soon as practicable under the provisions of the PRA. The PRA was thus premised on the primacy of the American public's right to know what their government was doing.

Second, the PRA struck a compromise, seeking to balance legitimate needs for periods of government secrecy against the public's right to know. To achieve this the PRA , borrowing from the Freedom of Information Act (FOIA), provided exemptions to the open-records premise to permit records closure for limited periods in specified areas - for example, national security, personal privacy, trade secrets, confidential commercial or financial information. In addition, the PRA established a novel, 12-year moratorium on access to the president's confidential policy advice in any area.

Ronald Reagan's presidential papers, which also included the papers of the Office of the Vice-President, in this case, George H. W. Bush, were scheduled to be released on January 20th, 2001, twelve years after Reagan left office. The National Archivist sent President George W. Bush notice that 37,000 pages from the Reagan years were ready for release to the public. Bush immediately set his White House counsel, Alberto Gonzales, out to block the release. Soon thereafter, Bush signed the executive order reversing the PRA. In his order, Bush stated that incumbent presidents might have an interest in the release of the documents of prior presidents, and thus had veto power (which he also provided to the previous president in question.) The papers could be repressed indefinitely, until both parties approved of their release.

While most presidents would have faced the wrath of the Congress whose authority he chose to openly challenge, the GOP comfortably held both chambers of Congress, and generally ignored Bush's arrogance. The mainstream media made little fuss over Bush's power grab as well. Only a handful of non-profit and academic groups challenged the Executive Order, and in early 2004, the DC Circuit Court dismissed the case (American Historical Association, et al., v. National Archives and Records Association, et al.) on the basis of standing, ripeness and justiciability. Much of the basis for the decision was the Archivists claim that all but 74 pages had been released, though the AHA and other plaintiffs asserted that number was in fact over a thousand. In a request that the Court reconsider, plaintiffs surmised:

Among the records withheld: a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, "Talking Points on Iran/Contra Affairs"; a series of memos dated 22 November and 1 December 1988 for the President entitled, "Pardon for Oliver North, John Poindexter, and Joseph Fernandez"; and a two-page memo for the President from the Attorney General, "Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987." Other withheld memos relate to the release of Justice Rehnquist's papers and materials relating to "Use of Military Aircraft by Mrs. Reagan."

So while Bush may be temporarily off the hook in regards to EO 13233, this sword of Damocles continues to hang over him. Congressman Henry Waxman on numerous occasions has submitted a bill overturning EO 13233; any shift in power in Congress may put the ball back in the court of the Judiciary.

Thus, we come to Bush's aforementioned short-list for nominees. While Conservatives have their own judicial activist litmus test (overturning Roe v. Wade, affirmative action, separation of church/state, etc.), Bush has is own list of qualifications, at the top of which is dependable support for executive privilege. A brief perusal of the "short list" candidates' backgrounds turns up at least a few which fulfill that requirement, and others, which, in my estimation, will be excluded because of their lack of proven fealty to preserving the Bush Legacy.

At the top of the Protect Bush camp is, of course, Alberto Gonzalez. As Bush's general counsel in Texas, and White House counsel in his first term, Gonzalez knows where all the skeletons are buried and will do all that is necessary to keep them interred. His rightwing credentials, however, are viewed by most religious conservatives as highly suspicious, as his decisions on the Texas Supreme Court show considerable judicial moderation. Not what they're aiming for in a SCOTUS nominee.

Many conservatives would like to see Mier's replacement also pulled from the ranks of women and/or minorities, viewing it as a significant hurdle for Democrats to overcome and not look hypocritical. However, none of those on the short list have much of a history within the Bush I or II administrations, and thus, while they may promote the Conservative agenda, they cannot be counted on to promote Bush's. Thus, don't expect to see Owens, Brown, Estrada, Clement or Jones on the bench any time soon.

That leaves the Boys Club.

Alito, McConnell and Luttig all have a history in Solicitor General' and/or Attorney General's offices under the Reagan and Bush I administrations. McConnell and Alito were brought in the highly conservative Solictor General Rex Lee. Luttig served under AG Richard Thornburgh, which may or may not have some problems, in light of Rove and Thornburgh's bad blood over an unpaid campaign bill.

Alito has the added plus on his resume of a stint as Deputy Assistant U.S. Attorney General under Ed Meese from 1985-1987, the height of the Iran-Contra years. If Alito is nominated, I would expect to see Bush whip out EO 13233 in regards to Alito's DOJ records and reports during that time.

One of the benefits of choosing Alito, Luttig or McConnell is that while they appease the religious conservatives who opposed a blank-slate Miers, they may also trigger a filibuster by Senate Democrats and moderate pro-choice Republicans like Snowe, Chafee and Collins (Snowe and Chafee are up for re-election in Blue states in 2006.) If Frist pulls the "nuclear option" in response to a filibuster and wins, Bush has both a nominee who he trusts, and a happy, rejuvenated GOP. If the filibuster is successful, or the "nuclear option" fails, Bush can turn to his Conservative flank and claim that "he tried", and then nominates the "moderate" Gonzales or some other qualified Bush crony. If Bush prefers to see this latter scenario, he'll pick McConnell, with his nutcase views; if he seeks the former, the more low-key Alito seems to be the appropriate choice. Either way, Dobson gets off his back and he doesn't have to listen to his mother bitch about what just might be in those sealed records.

Tomorrow will tell which path he's chosen. All around, things look pretty good for Jr...and Poppy as well.