Without the facts, there’s no consent

Attorney MARTIN GARBUS is the author of "Courting Disaster: The Supreme Court and the Unmaking of American Law" (Times Books, 2002).

DURING THE Senate hearings on the nomination of Chief Justice John G. Roberts Jr., the White House withheld documents Roberts created while working for the U.S. solicitor general. The rationale was that the documents were protected by attorney-client and what the government characterized as “deliberative” privileges. On Tuesday, President Bush made it clear that Harriet E. Miers’ White House papers would be treated in much the same way.

But the action was unconstitutional in Roberts’ case, and it is unconstitutional with respect to Miers as well.

Clause 2, Section 2 of Article II of the Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court.” As Alexander Hamilton wrote in Federalist Paper No. 67, this means that “the ordinary power of appointment is confided to the president and the Senate jointly.” James Madison and the other framers agreed.


The Senate’s right to information that the president has about a nominee is thus essential in this process and constitutionally mandated. The Senate cannot exercise its obligation without it. The law about consent is clear -- there is no meaningful consent if the consenting power has no knowledge of the facts.

Further, asserting that some information is privileged -- that it can be withheld because of a right to confidentiality -- cannot override constitutional obligations. The high court has dealt with the privilege issue before. Chief Justice Warren E. Burger, in 1974, denied President Nixon’s claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury during the Watergate affair.

Nixon gave two reasons for asserting privilege: First, that the separation of powers protected the executive branch from the surveillance of the judiciary, and second, that there was “the valid need for protection of communication” in the executive branch. Both arguments were rejected by a unanimous 8-0 Supreme Court (Associate Justice William H. Rehnquist abstained).

Burger’s decision acknowledged the president’s need for complete candor and objectivity from his advisors. But, he wrote, when the assertion of executive privilege depends solely on a broad, unspecific claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

Unless confidentiality is needed to protect military, diplomatic or sensitive national security secrets, Burger wrote, the court would find it “difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished” by producing the information demanded by the courts.

In no case in its history, the chief justice wrote, had the court extended the “high degree of deference” requested by Nixon “to a president’s generalized interest in confidentiality.”


Burger asked rhetorically if there was a public good that required the court to recognize executive privilege even though it might hamper the courts in getting at the facts. No, he said. Rather, the public good is served by the denial of the privilege -- so that “everyman’s evidence” is made available to the people. That same rule should govern the Bush White House today.

Burger also wrote: “The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the judicial branch ... would plainly conflict with the function of the courts under Article III of the Constitution.” In Miers’ case now, the claim of privilege conflicts with the legislative branch’s constitutional powers..

The Bush White House assertion of privilege, and its denial of information, is just as troubling as Nixon’s. At least as much is at stake. A president is in office for up to eight years -- justices have remained in office for nearly 40 years.

As important is the issue of precedent. If the White House successfully withholds Miers’ documents, then any president can withhold information about an otherwise unknowable Supreme Court nominee.

Miers and Roberts, when working as attorneys for the president, actually had the people of the United States as a client. The people, through the Senate, must not be forced to make blind judgments. That would allow the executive branch to dominate the judicial and legislative branches. It would make the court primarily responsive to one man (or woman) in the Oval Office. It would create a serious malformation in our democratic process, and it is not an overstatement to say that it could end our democracy as we know it.