Let the Sun Shine In

"These Supreme Court hearings will be the first in the Internet era and it is important that the Committee be ready for this event." So begins an internal memorandum recently sent by the Senate archivist to all Judiciary Committee staff instructing them that federal law requires the preservation of all documents and e-mails generated in relation to the confirmation of Judge John Roberts, including e-mail correspondence from outside organizations such as "Alliance for Justice, People for the American Way, Judicial Working Group, etc.," as well as "replies." Oh my.

I screwed up the posting. The second part should be a further captioned...

...At the Constitutional Convention, the framers debated what Congress could hold secret from the American people. James Wilson declared their purpose well: "The people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings."

America's greatest jurist, Justice Joseph Story, would later describe the "Secrecy Clause" that the framers agreed upon (emphasis mine):

The object of the whole clause is to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism and integrity and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts. . . . So long as known and open responsibility is valuable as a check or as an incentive among representatives of a free people.

The Secrecy Clause requires that the Senate should make its work public and only that which it, as a whole body, expressly designates may be held secret. The Senate has made that designation in Senate Rule 22 and in adopting the federal laws that the Senate archivist is seeking now to enforce. It has not designated the Roberts confirmation secret, nor should it.

The Senate leadership should order all senators and staff to preserve everything for archiving, without exception, and committee members should agree now, blind and on a nonpartisan basis, to authorize the National Archives to make such records available without any delay. This should not be a problem for true statesmen who have nothing to hide, especially Democratic senators who insist so strenuously that they, on behalf of the American people, should be allowed to examine the privileged papers of the executive branch.

Probably the most captivating portion, to me is:

...Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism and integrity and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture*, but by positive facts.

* see Washington State Governor's race, for example.

I was reminded reading this that Manuel Miranda (the author) was the Senate staffer in the memogate saga from last year, where he read Democrat staffer documents that had been left in the open on Senate computers. Here is a paragraph from the article on that subject, with a link to his essay on the subject.

The published Democratic strategy papers revealed that Democrats blocked judicial nominee Miguel Estrada because he was Hispanic, that they conspired with interested litigants to affect the outcome of pending litigation, and that they allowed radical liberal groups to call the shots in the Senate. The still-unpublished memos also showed, in my legal opinion, acts of corruption and illegality by some Democratic senators and their staffs. I documented all this in my essay, "The Politics, Ethics, and Law of a Republican Surrender" (available here in PDF form), and I brought a civil action (information here) to prove my point.

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