On Tuesday, the Supreme Court will hear argument over whether the District of Columbia's gun ban violates the right to bear arms as enshrined in the Second Amendment. In yesterday's Washington Post, Robert Novak (disclosure: Slate is owned by the Post) sheds darkness upon the two irreconcilable positions taken by the Bush administration in the case.
In an unprecedented intramural implosion, the U.S. solicitor general—representing the president at the Supreme Court—has argued that while there is an individual right to bear arms protected by the Second Amendment, the Court of Appeals for the D.C. Circuit Court struck down the city's gun ban using the wrong level of constitutional scrutiny. He wants the case revisited with greater deference to the government's need for some gun regulations (of, say, machine guns). This apostasy has forced Dick Cheney, in one of his quirky cameo appearances as president of the Senate, to put his name on a brief urging the court to affirm the D.C. ban as unconstitutional. Cheney's lawyer even briefly sought time to argue this position at the court next week, which would have ushered in the spectacle of two lawyers with different positions, each claiming to speak for the Bush administration. Only one of the parties would have accidentally shot a hunting buddy in the face.
According to Novak, the brief U.S. Solicitor General Paul Clement filed on behalf of the Bush administration in D.C. v. Heller was never representative of the president's position in the case, taking—as it does—a temperate, pragmatic position on the scope of the right to bear arms. The fact that President Bush's lawyer has reservations about arming the nation with fewer controls has enraged some of the president's staunchest supporters. I don't doubt Clement was trying to reflect a compromise between all sorts of constituencies at Justice. What I cannot believe is that he came to a final decision without checking in with his bosses.
But in the interest of giving the president a bit of political cover, word is sent out from on high that the SG's amicus brief was actually the unfortunate result of Clement getting all hopped up on ecstasy and filing something he'd composed on his Blackberry from the men's room at Denny's.
Thus, Novak is advised by someone (he doesn't say whom) that "the president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court" (italics mine) and that "newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in."
Marty Lederman pointed out yesterday that this characterization defies about 12 kinds of logic. It is impossible that, as Lederman writes, "in a case of this magnitude, on an issue that had obviously been of great interest and occasioned great debate within DOJ," nobody bothered to inform the White House of the solicitor general's view. And the very notion that Mukasey was so new on the job that he'd never conferred with Clement on the brief is just bananas. Mukasey had already been attorney general for two months when Clement filed his friend-of-the-court brief. Whatever your opinion of Mukasey, no one's ever implied he's sloppy or checked-out. The implication that he just forgot to chat with his SG for a few months is preposterous. If a junior associate at a law firm filed a brief that incorrectly stated her clients' opinion, she'd be fired. Yet we're supposed to believe that Clement made this monumental constitutional error and nobody even saw fit to correct him?
It speaks volumes about the mindset at the White House that Clement is accused of running hog-wild over there at Justice by filing a moderate, careful brief reflecting the consensus views of career professionals. The madman! He must be stopped!
But the Novak column should not just be read as an effort by the White House to distance itself from its own moderate stance in the gun case by throwing its brilliant 41-year-old SG (oh, and the acting attorney general during Mukasey's confirmation) under the bus. Clement has been one of the few senior people at DOJ to survive the Bush administration's threshing machine. The president's willingness to portray him as a deranged lone gunman just days before oral argument in Heller proves yet again that in this White House, no good deed goes unpunished.
The Novak column should also be seen as a sort of manifesto. A close reading serves as a stirring reminder of all the ways the Bush administration has disgraced and disserved the DoJ in the past seven years, by attacking its finest lawyers for resisting political manipulation. Anyone who's been watching the decline of the DoJ sees the moves as all-too-familiar. First, call into question the judgment of the career lawyers at DoJ who are just doing their jobs. Then—as we saw when nine U.S. attorneys were fired for political reasons last year—privilege popular legal myths such as rampant vote fraud, or the unfettered and unreasonable right to guns, over the actual work of the department.
But there's more. Evidently, the reason the Bush administration didn't "order Clement to revise his brief" was that the president's been facing "congressional Democratic pressure to keep his hands off the Justice Department." That's right, it's those meddlesome congressional Democrats who made Bush hang his SG out to dry.
Finally, Novak throws in the tidbit that Clement's wishy-washy brief in Heller was an effort to co-opt the wishy-washy Anthony Kennedy, "the Supreme Court's current swing vote." This column is not merely an attempt to bully Clement into changing his position at argument next week; it's another effort to browbeat Kennedy back into line as well. It's a signal to those folks unwilling to cede an inch on gun rights that if they don't get everything they want from the Supreme Court in June, Clement and Kennedy will be the ones to blame.
For all the talk we've been hearing about the "unitary executive" in recent years, this is the first time in anyone's memory that two different representatives are currently purporting to speak for the president in court. Rather than attempting to discredit one speaker or the other at the last minute, we should recognize them for what they are: The president speaking out of both sides of his mouth on gun rights.