Luck of the Draw

Karl Rove is facing contempt citations for his refusal to answer subpoenas to testify before congress. But lucky for him, he's gotten himself a friendly judge in Bush appointee John Bates:

A former deputy independent counsel in Ken Starr's Whitewater investigation, Bates is the same judge who threw out a Government Accountability Office complaint against Vice President Dick Cheney in December 2002. Back then, the GAO's comptroller general, David Walker, was seeking access to internal documents from Cheney's secretive Energy Task Force, using arguments similar to those the judiciary committee is making today—namely that the White House's refusal to provide information to congressional investigators is damaging Congress' oversight mandate.

Note, of course, that a background working for Ken Starr clearly does not in this case signify a strong belief in vigorous oversight of the executive branch. Rather, as Bates' previous rulings make clear, he's a believer in vigorous oversight of Democratic Party presidents while Republicans can do whatever they want. Bush clearly chose well when deciding to make this guy a judge.

Comments

I think when the history is written, eight years of partisan hacks being appointed to the bench will turn out to be the biggest catastrophe the country has suffered because of the Bush years.

Every step that is taken for the next generation, whether it be on worker's right, women's right to choose, the environment, energy policy, etc. will be fought tooth and nail by clowns appointed by Cheney with potentially horrific results for the average shlub.

Thank you, Ralph Nader!

And I hope that the dead ender Clinton supporters will bear that in mind as they pull the lever for Bush III.

Posted by calipygian | June 2, 2008 2:32 PM

Bates was a career federal prosecutor. There's absolutely nothing ideological in his background. No signals from a clerkship, or law firm, or mentoring relationship. Bates worked on the Foster investigation while working in Starr's office, while detailed there from his regular work as a career prosecutor. Needless to say, that portion of the investigation was not ideologically charged and was not in any way controversial.

Matt should apologize for this post. What a disgrace.

Posted by Thomas | June 2, 2008 3:11 PM

Um, I'm not sure the prior ruling makes that clear at all. According to the linked article:

"Though Bates ruled in the Bush administration's favor in 2002, it's unclear that precedent will help the White House now. Bates ultimately rejected Walker's case not necessarily because he bought the White House's claims of executive privilege, but because he found that, as an individual, Walker himself had no standing to sue the executive branch on Congress' behalf (particularly when Congress had neither subpoenaed the information sought in the lawsuit nor signed on as a plaintiff). . . . In his ruling in the energy task force case, Bates actually addressed a scenario similar to the one that's playing out now. 'Indeed,' he wrote, 'there is some authority in this Circuit indicating that a House of Congress or a committee of Congress would have standing to sue to retrieve information to which it is entitled.'"

Posted by DTM | June 2, 2008 3:12 PM

When history is written it will reflect the point of view of the victors. The Quixotes of the working brain legions are already defeated. History will say "It was necessary to appoint brain-dead judges to enact the will of the right."
As proof, I offer the spectacle of the current generation of weak minded fools in the military who blindly follow orders or suicide-up when confronted with facts not in agreement with their preconcieved opinions.
If you have ball one, get your ass back to the US and wise-up the fence sitters. Then you can be portrayed in movies and on TV as psychotic veterans and put in jail or discriminated against for jobs, just like your daddies who served in 'nam.
College students are too drunk and scared to confront these traitors to America. We will never have another Kent State or Chicago'68.

Posted by harrenga | June 2, 2008 3:28 PM

Thanks, DTM. That's much more useful than Matt's rather ill-informed post. Legal technicalities do matter, and just because the guy found that Walker didn't have standing doesn't mean he'll rule the same way against the House of Representatives. We'll have to see how it plays out.

Posted by John | June 2, 2008 3:30 PM

Are you sure that isn't a picture of Joe Banner?

(Any Philadelphia Eagles fans out there?)

Posted by Joe Klein's conscience | June 2, 2008 3:32 PM

Was it luck? During the Clinton administration, it emerged that the Clinton appointees in the local circuit were bypassing the random case assignment system to make sure all Clinton related matters were heard by themselves. Could something similar be going on now?

Posted by Brett Bellmore | June 2, 2008 3:42 PM

Can't Congress issue and enforce subpoenas by themselves under the doctrine of "inherent contempt"?

http://en.wikipedia.org/wiki/Contempt_of_Congress

According to Wikipedia they can just have the Sergant at Arms arrest Karl Rove and keep him in the basement until they talk to him. Although there are statutory proceedings to take into account (hence the judge here), Congress can bypass them if they so desire.

Posted by mikeyes | June 2, 2008 3:46 PM

Can't Congress issue and enforce subpoenas by themselves under the doctrine of "inherent contempt"?

http://en.wikipedia.org/wiki/Contempt_of_Congress

According to Wikipedia they can just have the Sergant at Arms arrest Karl Rove and keep him in the basement until they talk to him. Although there are statutory proceedings to take into account (hence the judge here), Congress can bypass them if they so desire.

Posted by mikeyes | June 2, 2008 3:48 PM

Contempt of Congress ... Isn't that what all people feel?

Posted by matt foley | June 2, 2008 4:08 PM

That's kind of what I envision Tim K to look like: geeky.

Posted by Eldrick | June 2, 2008 4:13 PM

mikeyes,

Yes they can, and they can even try him in the relevant House. Obviously it isn't a power they use very frequently anymore, but it is actually the logical next step if after the Executive refuses to take prosecutorial action (which it did), the Judicial Branch also refuses to hear a civil action (which is the case pending before this judge).

Posted by DTM | June 2, 2008 4:16 PM

Completely unclear to Matt: the Congress has nothing to ask Rove. It's all theatrics, and fairly lame theatrics at that.

Wake me when they decide to address something relevant, like enabling the construction of more power plants, or exploring for oil within the US.

Posted by James Robertson | June 2, 2008 4:50 PM

>he's a believer in vigorous oversight of Democratic Party presidents while Republicans can do whatever they want.

Three more data points confirming this assertation:
-In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court....
-On July 19, 2007, he dismissed a lawsuit filed by Valerie Plame Wilson and her husband against Vice President Dick Cheney....
-In a December 30, 2002 decision, Judge John Bates of the U.S. District Court ruled that lead plaintiff Representative Dennis Kucinich and 31 other Members of the House of Representatives have no standing to challenge President Bush’s withdrawal from the Anti-Ballistic Missile (ABM) Treaty...

Posted by bartkid | June 2, 2008 5:37 PM

I'm going to go with DTM on this. Legal nuance matters; Bates may very well find executive privilege not to be a legitimate argument in this context. Especially in light of past actions.

Also, though I've hardly looked at this back-and-forth, I want to ask: Given the nature of the matter --- i.e., a fight between the executive branch and Congress --- shouldn't the case be thrown out under the political question doctrine? Wouldn't it simply be more sensible and prudent for the courts to stay out of the fight and let Congress deal with Rove's flouting of its subpoena by sending out the sergeant at arms?

Ultimately, I can only see this empowering Congress, if it starts stretching some of its old muscles, rather than relying on the political goodwill of the other branches.

Posted by Monstertron | June 2, 2008 6:16 PM

Monstertron,

The thing is that the dispute is really between Congress and Karl Rove, and it is not clear the Executive Branch has any standing to interfere in a civil suit. It is a complex issue, however, and I agree in some sense it would be preferable from a separation of powers perspective for Congress just to arrest Karl Rove. But I gather there is a lot of reluctance on the part of Congress to resurrect this power.

Posted by DTM | June 2, 2008 6:35 PM

bartkid, that'd be more persuasive if, well, you made some sort of argument.

Being appointed to serve as a judge on the FISA court doesn't mean much. The law requires that at least 3 judges live within 20 miles of DC, so the DC circuit is well represented among the judges on the court.

Were the decisions you cite appealed? How did they turn out on appeal? Sometimes liberals lose cases; that doesn't make the judge a political partisan.

Posted by Thomas | June 2, 2008 6:38 PM

Correcting the errors of fortune

The DoJ and WH servers need to be carefully gone over starting 1/21/09 for e-mails to and from this particular "justice", who may not have operated blind of political direction. If we get lucky on this, or on the US Atty, or the DoJ career atty scandals, we could wind up with a whole slew of Federalist Society ex-judges. But it won't happen by chance.

Posted by Glen Tomkins | June 2, 2008 6:54 PM

Thomas, who I assume is the same apologist for the Bush administration's war on the people of Iraq, demands others do research to prove his point. What a fucking moron.

Here's an idea Thomas, you think that those cases don't demonstrate what bartkid says they do? Answer your own fucking questions. That way you look intelligent, rather than looking like an asshole who doesn't know the facts but is willing to cast aspersions based on ignorance and partisanship.

Posted by Not as stupid as Thomas | June 2, 2008 8:38 PM

Matt, you must be real fucking proud. Idiots like Glen here are now just making shit up to slander a former career prosecutor who became a federal judge. That's the sort of tone we see from the top here.

Glen, has this judge ever even spoken to a Federalist Society gathering? Ever attended one? I very much doubt it, but let me know what you find. You should have evidence before you make an accusation.

Posted by Thomas | June 2, 2008 8:40 PM

Thomas, your idiocy and partisanship are showing. Point to the line in Glenn's post where he says this particular hack is a member of the Federalist Society.

I, on the other hand, am willing to assume he is a hack because that's what George W. Bush generally appointed. That's the kind of people who worked for Javert/Starr. The likelihood that this man is not a hack is roughly the same as your not being a total partisan moron.

Posted by Not as stupid as Thomas | June 2, 2008 8:49 PM

I think it is incorrect to say that Bush generally appointed hacks to the federal bench. Of course some of his appointments were hacks, but I also know of many who were well-qualified and well-regarded by people of both parties in their relevant legal communities.

Posted by DTM | June 2, 2008 10:19 PM

Please, the Federalist Society is specifically designed to weed out the competent and promote rigidly partisan hacks as far up the food chain as possible. This is the organization Bush looked to for guidance and it is more than a little regrettable that a full scale purge cannot be done. These people will infest the judiciary with their pro-corporate, anti-American views for a long time. The damage they will do is immeasurable.

Posted by Not as stupid as Thomas | June 2, 2008 11:55 PM

Stupid, geez, you can't read, you can't write, you don't know anything about the law. What do you do well? You can hate the government all you want, but it seems a mighty strange thing for a liberal to do.

Posted by Thomas | June 3, 2008 12:02 AM

We can't know what they won't tell us

Thomas,

The Federalist Society has a policy of not revealing its membership. In the otherwise mostly low-key, if not quite love fest, nomination hearings for Roberts and Alito, one of the few points of questioning that seemed to provoke push-back from their side was the issue of their connection to the Federalist Society. Roberts went so far as to deny any memory of such membership, despite his listing as an officer in a copy of a 1997-8 directory that some reporter had obtained.

Why would a legal society purportedly organized to spread the gospel of Fedralist #78, for policy advocacy, advocacy which, in a republic, I would think would be strictly public advocacy, be organized like a secret society? Why would Roberts make a difficult to credit claim to not remember being a member of a society that had him listed as an officer? Aren't we entitled, aren't we forced, to conclude that they don't want people to be able to follow the lines of their influence on judicial decisions that are supposed to be made in public, solely by and for publicly stated reasons?

And there are hints -- again, they have blocked the sunlight of public disclosure that could exonerate them if there were nothing to these suspicions -- that the Federalist Society may have gotten into clearly illegal influence in the US Atty and DoJ career atty scandals. It is not clear, because the administration has invoked a fairly ridiculous claim of executive privilege to conceal the evidence, but it seems that a wide swath of the Republican/conservative machine was consulted for "character references" on the ideological loyalty of candidates to be hired and fired as US Attys, and candidates for what are supposed to be strictly apolitical career atty positions in DoJ. The Federalist Society has been mentioned by name as one such source of "references". Maybe they weren't even involved, maybe their involvement was pure as the driven snow, maybe they were involved in ways arguably unethical but not illegal, but it is also possible that Society officers were knowing participants in an illegal scheme to get conservative attys chosen preferentially for career positions. We'ld have more to go on if the leads we have hadn't all copped various pleas, and the administration weren't stonewalling.

All we have is a suspicious pattern, that now extends over many who almost certainly would not merit suspicion if we knew what we the people ought to know if our govt were truly of, by and for the people. But we don't know already what we should long since have know of the Us Atty, career atty, and dozens of other scandals, because there is a criminal machine in office right now that controls the evidence and controls the prosecutors, and is understandably not letting us get a clearer picture of its criminality. That, hopefully, will change 1/20/09. My suggestion about Judge Bates was that unblocking some of that evidence, say Karl Rove's e-mail Rolodex, will either show that he was part of the gang, or was wise, prudent, or honest enough to at least avoid leaving evidence to that effect lying around, however much his decisions have, perhaps from purest coincidence, helped the machine avoid legal scrutiny.

A word of more general advice. If the merest questioning of the probity of folks of the most distinguisehd record of public service makes you reach for the smelling salts, I would advise a holiday from exposure to the news for the next, say, 10 years. A lot of these folks are going to prison, and some to death row. Obama probably does not want that to happen, because it will just complicate his life enormously, but the mountain of evidence we already have of completely careless and artless criminal behavior in this administration from 2002-2006, the period when they imagined that they would never be held accountable, is such that the next president wouldn't be able to hold back the prosecutions unless he suppressed the evidence and repressed the prosecutors as vigorously as the incumbent does both these things. If the thought of thousands of Republicans in jail makes you sick, move to Australia and don't subscribe to any newspaers, watch any TV, or follow any blogs until about 2020.

Posted by Glen Tomkins | June 3, 2008 12:27 AM

Thomas you fucking moron, you can attack all you want, but you can't defend your position. You made a bunch of idiotic assertions, but you don't provide any supporting evidence. "Hate the government?" Back it up. "Don't know anything about the law?" Back it up. You still haven't bothered to back up your moronic assertion that anyone claimed this hack was a member of the Federalist Society.

Given your inability to reason, write, or even read the posts you attack I would be surprised to hear you had opposable thumbs. But I guess once you've had a lobotomy, the only way someone could be so stupid after all this time as to defend Bush's appointments, it doesn't matter if you can work the can opener.

Posted by Not as stupid as Thomas | June 3, 2008 3:16 AM

Why must we, the American public, suffer for John Bates' childhood full of wedgies?

Posted by Nordy | June 3, 2008 2:13 PM

Nordy has the best comment of the day.

Glen, Thomas, Not as stupid as Thomas, Not Glen's stupid Thomas, whatever--

Take it outside, boys!

Posted by Ella in NM | June 3, 2008 3:32 PM