Manufacturing a Fight

I've said several times, both here and in posts at other websites, that I've been pleasantly surprised at how smoothly the Supreme Court confirmation process has gone so far. I think members of the Administration and of the Senate have behaved - on the whole - more than admirably, and have resisted the rhetoric of the interest groups on both sides who have been spoiling for a knock-down, drag-out brawl.

On Sunday, I'm afraid we witnessed the first false skirmish of a battle that I hope will never come. It began with some statements on the talk shows, was picked up by a flame-fueling media, and by mid-evening had provoked a slew of vitriol from activists (particularly but not exclusively on the left) ready to take to the trenches in a fight that doesn't even exist.

We begin our tale on Friday, when Sen. John Kerry (who I would note is not a member of the Judiciary Committee), issued a demand that the White House turn over "in their entirety" all work product and documents dating from Supreme Court nominee John Roberts' time in the Reagan and George H.W. Bush administrations. Said Kerry "We cannot do our duty if either Judge Roberts or the Bush administration hides elements of his professional record."

An Associated Press report from early Saturday quoted "Democratic officials" as saying "they want access to all material regarding Roberts at the Ronald Reagan Presidential Library in California." Tracy Schmaler, a spokesperson for Judiciary Committee Democrats, would not spell out exactly what materials the committee's members would request: "She said that in general, Democrats intend to seek material relating to Roberts' career."

It was apparently Kerry's demand (which was repeated by some other non-senior Democrats) that prompted the Sunday talk show hosts to press this weekend's guests on the issue: it came up in interviews on "Fox News Sunday," NBC's "Meet the Press," CBS' "Face the Nation," and ABC's "This Week" (links are to transcripts where available). Each of those being interviewed (Attorney General Alberto Gonzales, Judiciary Committee ranking Democrat Pat Leahy, former Senator Fred Thompson, Senator John McCain, Senator Joe Biden, and others) noted correctly that no official request for documents has been made by the Judiciary Committee ... a fact which didn't seem to matter either to the interviewers or to those who have since written articles on this story.

Let me come back to what was actually said on the talk shows, and move on for now to what has been reported as being said. At 12:37 p.m. Sunday afternoon, Associated Press writer Douglass Daniel filed a story headlined "White House Won't Show All Roberts Papers," which began with this striking paragraph: "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." Oh boy: batten down the hatches and secure the rigging, there's rough seas ahead for sure!

Daniel goes on to take short snippets of quotes from the interviews of Thompson and Leahy which make it appear as though the Administration and Democrats are at loggerheads, and ends his piece with this out-of-context gem from McCain: "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."

The AP story was more than enough to prompt mutiple diaries at DailyKos and other liberal blogs decrying the "stonewalling" of the Administration and the complicity/duplicity of John McCain and Fred Thompson with the nefarious schemes of "Bush/Rove" to keep Roberts-related documents out of the hands of the Judiciary Committee. ABC, MSNBC and probably other news outlets as well (those were the ones I noticed) had the story on their front pages for several hours Sunday evening and into the night, with that glaring headline for all to see.

Late Sunday, the New York Times got into the act, filing a piece by Felicity Barringer headlined "Nomination Reopens Debate on Disclosure." Barringer disguises her piece in the costume of "historical perspective," but steps into murky waters right off the bat. "For at least 34 years, Democrats and Republicans have staked out opposing positions on the question of whether a onetime Justice Department or White House lawyer, like John G. Roberts, should, when nominated to the Supreme Court, open up his government writings and recommendations to public scrutiny," she writes in the opening paragraph, before going on to note in the third and fourth paragraphs that the Nixon and Reagan administrations (both Republican) ended up with different positions on the issue, and not mentioning once where the Carter and Clinton administrations came down on the question.

Barringer also notes differences between the positions of Leahy and Thompson on the Sunday shows:

"Senator Patrick J. Leahy, a Vermont Democrat who is the ranking minority member on the Judiciary Committee, said there was 'no client, lawyer-client privilege' that Judge Roberts could assert about his work in the White House counsel's office in the Reagan administration or in the solicitor general's office of the first President Bush.

'Those working in the solicitor general's office are not working for the president,' Mr. Leahy told George Stephanopoulos on the ABC News program 'This Week.' 'They're working for you and me, and all the American people.'

But on 'Meet the Press' on NBC, Fred Thompson, the former Tennessee senator serving as the point person for the White House on the Roberts nomination, said that while the Senate Judiciary Committee had not yet asked for any documents, if 'you're talking about, at least in part, some attorney-client privilege material,' then, in keeping with the administration's position, 'those things will not be forthcoming.'"

As with Daniel's piece, the impression from Barringer's is that the White House and Democrats are at each other's throats about this, with the battle about to erupt into partisan warfare at any moment.

But wait. There's more to the story than meets the eye.

What Barringer says in one sentence, and Daniel in five, is that there is no dispute over documents. The Senate Judiciary Committee has not requested any documents, and the White House has not refused to turn over any documents. If you remove the few quotes from the mix that make this whole thing into, well, into anything, here's what you're left with:

- Leahy: "We don't need all his papers. I haven't even thought if there's something I'm going to ask for or not." [From Barringer's Times piece, apparently from a phone interview on Sunday afternoon].

- Gonzales: "I think it's too early to prejudge what the Senate's going to be asking to see, and how the administration is going to respond. In connection with many nominees by this administration, and previous administrations, there is often an accommodation that is reached with respect to requests for information, and I suspect that's going to happen in this case. The Senate Judiciary Committee will ask for certain kinds of information, and we'll evaluate it, and our goal is to be as accommodating as we can, to ensure that the appropriate information is provided to the Senate, so that they can make an informed judgment about the superb qualifications of John Roberts to serve on the U.S. Supreme Court. ...

We understand that this is a very important decision by members of the Senate, and they do need information to make an informed decision, and we're going to work as hard as we can to reach the appropriate accommodation." [From "Fox News Sunday"].

- Thompson: "Well, in the first place, Judge Roberts hopes that everything that the Senate needs and is appropriate for them to have, they'll have, and he'll do his part along those lines. If I understand what you're talking about - and I must say that the committee has not asked us for anything yet ..." [From "Meet the Press"].

- Biden: "[I]t is not at all inappropriate to seek documents. And in most cases, the documents sought are provided. A lot of it has to do with work product of cases that have been worked upon. But, again, the one thing I'll agree with the Attorney General on I think it's a little premature to make a blanket judgment about what should be asked for and what should be given ..." [From "Face the Nation"].

Those don't sound like people who are shouldering their muskets to me. They sound like reasonable policy-makers playing their roles appropriately, not making harsh statements or getting ready to rip the other guy's throat out. Sure, there was some disagreement today, and yes there may end up being some sort of dispute over who gets to see what documents and to what extent. But we're not even close to that point yet, and in fact we may never get there at all. The AP and Times stories of Sunday's events serve as little more than bellows to fuel the smouldering ember of discord that the media and bitter partisans on both sides long to see erupt into a conflagration, a towering inferno of 'supreme' proportions.

We in the "reasonable center" have a duty here, as I see it. We've got to call out things like this when the media starts to play hot potato with them - we have to throw all our power into batting down stories like this wherever they pop up (think of it sort of like a game of political "Whack-a-Mole"). We have to remember, when everyone else is trying to make us forget, that those who seek to divide us are only successful if we allow them to win. This only becomes a fight right now if we give in to the people who want one. I, for one, don't intend to do so.

[Update: A few more inanities from this morning's roundup of the news. Check out this "excerpt" of the Daniel AP article in the Chicago Sun-Times. Only the at-odds quotes from Thompson and Leahy; not even the measly five sentences of reality we got from the full version.

This Bill Nichols piece in USA Today is hardly better, leading off with "The Bush administration does not plan to turn over all the documents written by Supreme Court nominee John Roberts while he was a federal official, a White House adviser said Sunday, citing privacy concerns and precedent." At least the Nichols article recognizes that no documents have even been requested ... in the eleventh paragraph, long after most readers have left to find "Doonesbury."

And from the LA Times? Ah, this is a doozy. Raul Richter's "White House Will Hold Back Some Papers Nominee Wrote" begins with this ominous sentence: "Defying Senate Democrats, the Bush administration will withhold some documents written by Supreme Court nominee John G. Roberts Jr. while he worked for earlier Republican administrations, advisors to the White House said Sunday." Richter takes tiny snippets of quotes from Gonzales and makes it seem like he's drawn a bright line in the sand of no disclosures:

"Atty. Gen. Alberto R. Gonzales, who appeared on three news shows, warned that releasing internal documents written by Justice Department lawyers 'does chill communications between line attorneys and their superiors within the Department of Justice.' On 'Fox News Sunday,' he characterized the documents as 'very sensitive, very deliberative information, not something that the administration or any White House would be inclined to share because it is so sensitive.'"

Richter makes no mention of the fact that no documents have been requested, and uses zero of the quotes from Thompson, Gonzales, or Leahy noting that accommodation will probably be reached once a request is made.

C'mon guys. Get real, and start reporting what's said, not creating fights. -- 9:25 a.m.]