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Miranda Warning:
In the free section of today's OpinionJournal.com, Manny Miranda takes the Bush staffers to task for their shoddy handling of the "Federalist Society´issue."
Judge Roberts's ties with the Federalist Society are not the story. If Judge Roberts is not a member, he's not a member. But the White House should not be in the business of appearing to disassociate itself from its friends. By running to correct media reports last week that Judge Roberts was a member of the Federalist Society, the White House created an issue where none existed. It should have left it to the press or Democrats to unveil this great mystery. . . .

Why should the White House have stayed silent? Several reasons. As we should know by now, the left loves to come up with conspiracy theories; responding to them only encourages this kind of scare-mongering. Also, by responding to the reports, the White House legitimized an attack on good people who may include future judicial nominees, including the president's next Supreme Court pick.
In addition, it harms a GOP-friendly society of lawyers that depends on membership dues for support. Students and lawyers with visions of future confirmation hearings dancing in their heads may now think twice before joining the Federalist Society. (I am sending in my application and dues today and I urge others to do the same.)

But there is an even better reason for why the White House should have stayed quiet: loyalty. . . .
CharleyCarp (mail):
I don't know, but maybe some folks in the WH see their duty of loyalty as running to a higher entity than to a political party (or small subdivision thereof).

Maybe they heard something being said that contradicted what Judge Roberts told them, and thought the better course was to set the record straight.

I think I'd rather live in a world where that's what the folks I am paying are most interested in doing, rather than a world where they are taking a public paycheck to engage in partisan hackery.
7.27.2005 7:15pm
ajf (mail) (www):
i think the white house is using all its loyalty chits on rove right now...

randy -- you're teaching at GULC next semester?
7.27.2005 7:36pm
Randy:
Yes, ajf, I will be teaching at GULC in the fall before returning to BUSL in the spring. I am looking forward to it.
7.27.2005 7:40pm
elliottg (mail):
Is this the Miranda who was fired by Orin Hatch for being a thief? Why respect and propagate his opinion?
7.27.2005 8:11pm
Bubb Rubb (mail):
elliottg:

Miranda is the guy who hacked, or probably more appropriately exploited security flaws, to get access the Dem file server. He took documents and passed them along to conservative media outlets. The potentially illegally obtained documents showed that the Dems were unsurprisingly discussing with other liberal groups which Bush judicial nominees to oppose. The Dems called for a criminal investigation, Hatch fired him as a compromise and the issue was apparently dropped.
7.27.2005 9:43pm
Fern R (mail):
I'm at a loss as to why providing correct information is an insult to the Federalist Society? I am a Federalist Society student chapter president, and I don't think the Federalist Society was harmed by the White House correcting inaccurate stories, nor do I think that the legitimized an attack on us. People who think the Fed-Soc is some sort of conservative cabal are lunatics and anyone who is somewhat informed knows that they are lunatics, regardless of what the White House says or doesn't say.
7.27.2005 10:49pm
Fern R (mail):
Sorry, one more thing. It's not like the Fed-Soc is desperate for some association with highly intelligent legal thinkers. Some of the most brilliant legal minds are members of the Fed-Soc, a couple of are bloggers on this website. I think it's more insulting that someone would suggest that the Fed-Soc needs a faux association with a Supreme Court nominee than it is to give accurate information to the public.
7.27.2005 10:56pm
David M. Nieporent (www):
I'm at a loss as to why providing correct information is an insult to the Federalist Society?

It's kind of a Seinfeldian Not That There's Anything Wrong With That.

When someone accuses you of being X, and you fervently deny it, you make the issue whether it's true rather than whether it's a negative.
7.28.2005 12:56am
arbitraryaardvark (mail) (www):
I have seen reports that Roberts is/was listed on the advisory board of a fedsoc chapter, even though he wasn't a member per se. I think the fedsoc is a conservative cabal.
I am a lunatic. I was treasurer of our student chapter of fedsoc.
7.28.2005 1:49am
Fern R (mail):
Aardvark--As long as you promise not to show anyone the secret handshake, we can agree to disagree about the conservative cabal. ;-)
7.28.2005 4:42am
Scipio (mail) (www):
I was President of the Ole Miss Federalist Society, and never was a conservative/libertarian group less necessary than that one.

We had a membership of three, despite tremendous organizing efforts, and an excellently attended talk on federalism by Michael Greve (a heck of a guy, BTW).
7.28.2005 8:54am
Larry (mail) (www):
It isn't hard to become a member of the Federalist Society. Anyone can join. People claim that it is prestigious, but anyone -- even people without law degrees can join. It would be more prestigious if, say, they required proof of bar membership, and at least 20 appellate cases argued. But they just want warm bodies. Because they let anyone in (regardless of whether they have ever even been considered for a professorship), their meetings usually degenerate into a bunch of platitudes and people without jobs trying to get them.

ACS does not have minimum standards either. But they don't call themselves "prestigious" or anything like that.
7.28.2005 9:16am
Public_Defender:
I'm glad to see that so many FS members aren't worked up about this. ACLU members have been used to this kind of "criticism" for decades. To those who are upset, I say stop being so thin-skinned. This kind of comment is an acknowledgement of the success of the Federalist Society.

As to Miranda, listening to him on a question of what's right and what's wrong is laughable. Setting aside the question of whether he committed criminal violations (I'm doubtful), he acted in a way that dishonored his profession.

If I'm in the office of another lawyer, I know I can leave a folder on a table and my opposing counsel will not open it when I step out of the room for a moment. To my discredit, I once accidentally faxed confidential materials to an assistant (state) attorney general. When I called him, he promptly destroyed the documents. No opposing counsel could trust Miranda to act so honorably.

Miranda's actions could have been attributed to the foolishness of a young (soon-to-be ?) lawyer, but he has steadfastly defended his lack of professionalism. He is a disgrace to the legal profession and to any cause to which he attaches himself.
7.28.2005 9:21am
T. Gracchus (mail):
Miranda is not a new or young lawyer. He was in practice for a number of years before moving the Senate staff.
7.28.2005 11:25am
Public_Defender:

Miranda is not a new or young lawyer. He was in practice for a number of years before moving the Senate staff.

I was trying to give Miranda the benefit of the doubt. I guess he didn't deserve it. I have to give Orrin Hatch some credit for helping to push Miranda out the door. According to TNR, Hatch said that he was "mortified [over] this improper, unethical, and simply unacceptable breach of confidential files. . . ."

Apparently Hatch has an ethical backbone that the WSJ editorial page lacks.

And yes, this diverts from the original topic of the thread. But if conservatives want to cite to Miranda on questions of fair play, that's the price they pay.
7.28.2005 11:40am
w. lyle stamps, esq. (mail) (www):
Since when does poisoning the well constitute a valid reason not to listen to the advice of another? Isn't it the message, not the messenger that matters? Hm...Alas for Rosencrantz &the Guildguy...
7.28.2005 12:50pm
Public_Defender:

Since when does poisoning the well constitute a valid reason not to listen to the advice of another? Isn't it the message, not the messenger that matters? Hm...Alas for Rosencrantz &the Guildguy...

Fair enough. But Miranda's view of "loyalty" is warped. He thinks the senators should have stood by him even though he rifled through files he knew weren't his. Miranda appears to think that as long as a leader's henchmen are acting to advance their leader, the leader owes them loyalty, even if the henchman act dishonestly or unethically. That's a mafia-like mentality.

Having someone with Miranda's ethical baggage argue in favor of the Federalist Society does the organization no good. It only reinforces the (incorrect) view of some that the organization is some form of shady conspiracy because, well, Miranda is shady, and he's willing to cross ethical lines to get what he wants politically. If Miranda were a typical Federalist Society member (which he's not), the dems would be right about the organization.

Miranda's serious comparison to the McCarthy hearings are hysterical. People are questioning Roberts' fitness to sit on the Supreme Court. That's fair in a job interview.

Under a McCarthy scenario, the dems would have kicked Roberts off the DC Circuit, disbarred him, bankrupted him, and left his family in disgrace. Instead, Roberts is subjected to a few easily answered questions about his association with an overtly political group. Judge Roberts can handle that.

I predict that this controversy will increase interest and membership in the Federalist Society, just like similar criticism benefits the ACLU's membership roles.
7.28.2005 1:23pm
David Kravitz (mail) (www):
I couldn't care less what Miranda thinks about the FedSoc. What struck me as interesting about Miranda's column is how transparently he seems to be kissing up to Orrin Hatch, the guy who fired him. Anybody know if there's a subtext here? More about this here.
7.28.2005 5:21pm
Public_Defender:
David and Lyle,

Your to posts make an interesting point when combined. Lyle asks why Miranda's ethical bankruptcy is important (OK, I'm spinning a little). David wonders why Miranda is sucking up to Hatch.

Miranda probably understands that his ethical lapses have made his support for Judge Roberts counterproductive (or at least irrelevant) to the only 100 people whose opinion counts in the confirmation fight.

My guess is that he's trying to use toadying to make up for his slimy reputation. But I'd be interested if someone else had more than speculation.
7.28.2005 5:59pm
WHerndon (mail):
Personally, I think the most interesting thing, by far, about the Miranda incident is what he found in those Democratic documents. One could argue that Democrats were acting most improperly, if not unethically.

Now, one can argue tht what Miranda did was unethical, as some here do, and I am all right with that. Yet does and should this concern about ethics extend to lawyers who confidentiallly release to favored reporters sensitive documents or information — say, about investigations they conducting? Was it okay for Ken Starr to leak info from his probe of Clinton? Or whichever lawyer is leaking info from the Plame investigation? I think not.

The point is, reasonable people seems to think such action is unethical in some situations but not others. And what determines how that judgment is formed? Well, it usually depends on the information that is leaked.

Similarly, government officials leak classified or sensitve information all the time, especially civil-service-protected officials who are members of another party and disagree with what the party in power is doing. Is this okay and ethical?

I guess, as a former president might have said, it all depends. Context, not image, is everything. Maybe the leaker is doing a great public service, or maybe not.
7.28.2005 8:07pm
Steve:
I think it's Bill Frist whose "disloyalty" Miranda is mostly upset about, not Orrin Hatch.
7.28.2005 9:15pm
John Tillinghast (mail):
Noam Scheiber has a different POV: John Roberts keeps insisting that he's not a member, even though he's clearly close to the Society.
http://www.tnr.com/etc.mhtml?pid=2737


A nice piece on Miranda's reinvention of himself as pundit:
http://www.tnr.com/doc.mhtml?i=20050725&s=crowley072505
7.29.2005 4:29am
Public_Defender:
WHerndon,

Is it unethical for a lawyer to "leak" information to the press? Sometimes, it depends. The answer is actually quite complicated. And I think that gets away from the topic of this thread--Miranda's mafia-like definition of about "loyalty."

Is it unethical for a lawyer to rifle through opposing counsel's files? Always. The answer is simple.

Does it matter whether opposing counsel locked the files (as Miranda basically claimed)?
No.
7.29.2005 5:46am
Adam (www):
For Miranda's lengthy, petulant effort to defend himself (and smear Orrin Hatch and others), see this article he wrote for the conservative Texas Review of Law &Politics.
7.29.2005 8:54am
Public_Defender:
In the article that Adam links to, Miranda argues that he had the right to look at the documents because "electronically-stored papers easily accessible on one's office desk top are virtually the same as papers left on one's desk."

So, when opposing counsel visits my office, he or she is entitled to open files I have on my desk? Miranda wanted loyalty to protect this kind of snooping? I can't believe that the Federalist Society really wants this kind of "loyalty."

Miranda discredits any group that gives him a platform. The WSJ editorial page editors should be ashamed.
7.29.2005 9:44am
WHerndon (mail):
I dunno, Public Defender. Last I checked, Congress was a hotbed of partisan activity. In fact, it has been that way for, oh, two centuries. Clearly, what goes on in Congress is not the same as what goes on in your law office, regardless of whether an opposing counsel is visiting.

In a nicer, more perfect world, no one would snoop or act in similar underhanded ways. Yet it seems to happen rather frequently, and as I noted, criticism tends of such behavior tends to be situational.

Consider the recent Schiavo controversy. A counsel to GOP Senator Mel Martinez wrote a memo to his boss suggesting how the Republicans could benefit publicly from the case. Martinez, not having read the memo, inadvertently passed it on to Democratic Sen. Harkin.

Did Harkin question Martinez about the memo for clarification -- at which point Martinez could have disavowed his counsel's statement, and the two men privately could have let the matter drop?

Uh uh. Harkin passed the memo on to reporters and suggested to them that the memo was being handed around to top Republicans, which proved to be untrue. Still, it became a fairly big story and Democrats tried to use the manufacturered controversy to damage the GOP.

In my perfect world, Harkin would have acted more ethically and gentlemanly. Obviously, Martinez did not mean for him to see that part of the memo. But Harkin thought it was fair game since the memo came into his possession. I could easily draw a parallel to the Miranda situation.

Then, of course, we had several well-known examples of Democrats gaining possession of illegally taped conversations of GOP lawmakers, which were released to the press and the public. I dont remember a big outcry among Democrats (or lawyers) about the behavior of fellow lawmakers.

Color me a skeptic then. I suspect if the situation were reversed, someone might emerge as a hero. Let's say Miranda was a liberal Democrat. Let's say he found memos indicating a secret GOP plan to work closely with socially conservative groups to come up with a 'stealth' Supreme Court candidate who would almost assuredly vote to overturn Roe v Wade.

In such a case, do you really believe people here who are critical of Miranda would still be talking about him in such a way? I am dubious. The focus of the press and the Democrats would be on what those nasty Republicans are doing.

I wish that were not so. But I've been living in DC too long, and walking the halls of Congress too much, to believe otherwise. In this city, it's all about whose ox is getting gored. Ethics, as I said before, is usually situational.
7.29.2005 10:53am
Public_Defender:
Harkin's passing on the memo was inappropriate and wrong. I see reasons why it was less serious than Miranda's action, and others why it was worse.

Let's start with the bad (for Harkin). Harkin's a Senator, so he should be held to a higher standard than staff. He's also a lawyer, so he should hold himself to a higher standard than other politicians (if he has given up his license, I might cut him some slack here).

As to Miranda, he was acting as the committee's lawyer. Lawyer's just aren't supposed to rifle through other people's files, even if it would not be a crime for a non-lawyer to do so. Also, Harkin did not rifle through a Republican's desk to get the memo--the Republican handed it to him. This doesn't make Harkin right, but it is mitigation.

Bottom line, Harkin should have returned the memo. But at least he hasn't made a career by trumpeting his ethical breach.
7.29.2005 11:09am
Public_Defender:
Looking at my last post, I realized I was imprecise.

Miranda did at least two things wrong: He rifled through files, and he disclosed the contents.

Harkin did only one of those two things wrong: He disclosed the contents of an inadvertantly disclosed memorandum.

As to congressmen disclosing the contents of taped conversations, were any of them lawyers? One point of my posts is that despite all the jokes, lawyers must be held to a higher standard than non-lawyer politicians. Hatch understands this. Harkin apparently doesn't. Miranda defiantly refuses to live up to the standards of his profession.
7.29.2005 2:13pm