Olson says the president (or the vice president acting as his surrogate) shouldn't have to submit to litigation, every time advice is sought from citizens. Kennedy points out that "I hear echoes of every discovery dispute I've ever heard" in that argument.
Alan Morrison has 15 minutes to represent Sierra Club, and he quickly runs afoul of both Scalia—the guy he tried to bump off the case —and Justice John Paul Stevens, who gang up on him about the breadth of the discovery order. (Listen
Paul Orfanedes has 15 minutes on behalf of Judicial Watch, and Scalia again distinguishes between "involvement of private individuals on the task force" and influencing the task force's ultimate decisions. Scalia will make this point about six times this morning, and maybe I just imagine the echoes of his own protests about the difference between "participating" in a duck hunt and being improperly influenced by the vice president.
Justice Stephen Breyer points out that under Orfanedes' view of FACA, the head of an agency would put everyone who telephones him with advice about a commission in danger of being hit with a discovery order. "Congress could not have intended to put the government in a cocoon when it tries to create legislation," he says. Stevens beats up Orfanedes even more: "They talked to a lot of people and got a lot of advice. Does that make them de facto members of the committee?" he asks.
Olson offers a masterful rebuttal: "There is no statute that creates the right that the petitioners seek here. There is no cause of action under FACA. And there is no clear remedy. And so, they just jumped over the fact that the statute didn't give them the right to bring this case and brought it in the form of mandamus. Mandamus is no substitute. It's not appropriate here."
Sure, that's the pot calling the kettle a mandamus—let's recall that a mandamus action was the sneaky way (the "razzle-dazzle" maneuver, to quote Professor Thomas Baker) the Cheney team got us here in the first place. But Olson almost manages to look like he pulls it off today. It's not clear that he'll get a majority of the court to set aside the jurisdictional problem of deciding a case that was never decided in the first place, but he almost makes a case for sweeping executive-branch immunity from any public scrutiny, ever, sound like a terrific idea.
In the interest of fairness, I offer the following clarification. In a recent piece about the federal marshal in Hattiesburg, Miss., who destroyed tapes of a speech by Justice Scalia, I was not at all clear on one point: The federal marshals who guard the justices on the road are not the same entity as the Supreme Court police, who provide for security at the high court. In comparing the conduct of both, I did not mean to suggest that the court police would erase audiotapes. The fact that the court police are charged with confiscating scarves, newspapers, and enforcing other capricious judicial preferences, however, remains problematic.