I'm a bit surprised that Yahoo picked up this important and thoughtful, expert post by Martin Garbus:
Martin Garbus: Attorney-Client Privilege vs. the Constitution
by Martin GarbusOctober 4, 2005
During the nomination process of the new Chief Justice the White House, on the grounds of attorney client privilege, withheld documents John Roberts created while working for the Solicitor General. There is every reason to believe they will do the same for the new nominee. It was unconstitutional then and equally unconstitutional with respect to Harriet Miers. But it is even more important now. At least there was some public record to see what John Roberts thought prior to his appointment -- with Ms. Miers there is none.
Clause 2, Section of Article II of the Constitution states the President has the sole power to nominate, but the right to confirm is to be shared by the President and Senate. The Constitution says the President "by and with the ... consent of the Senate, shall appoint ... Judges of the Supreme Court."
As Hamilton wrote in Federalist Paper no. 67 the constitutional provision concerning the appointment of Supreme Court justices and other designated federal offices means "the ordinary power of appointment is confided to the President and the Senate jointly." Hamilton refers to the Senate's power concerning appointment as a "concurrent agency with the President." James Madison and the other framers were in agreement.
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Ms. Miers' ultimate client, when working for the President, are the people of the United States. Constitutionally, it is to the people to whom she was ultimately responsible, and the Senate, the elected body of the people has the right to know what the President knows so it can exercise its constitutional power of consent.
Much more at the link:
http://news.yahoo.com/s/huffpost/20051005/cm_huffpost/008342;_ylt=A86.I0s5UUNDAWEB0yr9wxIF;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUl Give it a vote after you read the full post. Currently (2218 PDT it's got 5 stars).
Also, for those not familiar with Martin Garbus here's his bio:
Martin Garbus is a partner in the law firm of Davis & Gilbert LLP and one of the country's leading trial lawyers. Mr. Garbus aggressively represents his clients in the courts and in the media. He has appeared before the United States Supreme Court as well as the highest state and federal courts in the nation. His devotion to ethics, justice and the law has earned him respect among the legal community and beyond as well as prominent awards. Time Magazine has named him "legendary . . . one of the best trial lawyers in the country," while Newsweek , the National Law Journal and other media agree that Mr. Garbus is America's "most prominent First Amendment lawyer," with an "extraordinarily diverse practice." The National Law Journal named him one of the country's top ten litigators.
At present, Mr. Garbus is preparing to appear in Federal Court before a jury in 2005 in a copyright infringement suit against hip-hop and rap star, Eminem (also known as Marshall Mathers). Mr. Garbus represents a composer whose music was copied without authorization and used in the song Kill You , the first track on The Marshall Mathers LP. That album, Eminem's second, enjoyed sales of over 16,000,000 CDs, making it number one in CD sales in 2001.
Currently, Mr. Garbus is also representing employees in a class action employment discrimination suit challenging President Bush's "faith based" initiative and flight attendants in a labor dispute against their union and American Airlines. Both cases are to be tried in Federal Court before the end of 2005. Mr. Garbus will try another jury case in New York State Court in early 2005 that involves damage to a $20,000,000 painting by one of America's greatest artists. In a recent personal injury suit against American Airlines, Mr. Garbus won a jury award of $26,000,000, one of the largest awards at that time.
Mr. Garbus is also presently representing individuals who appeared before the San Francisco Grand Jury looking into steroid use in organized sports. He also defended murder cases in Nebraska, Minnesota, South Dakota and New York, and white collar cases, including defending one of America's leading scientists against a claim by IBM that he stole their secret computer codes. "On behalf of Miramax, he brought a suit to declare unconstitutional the MPAA ratings system."
Mr. Garbus most recently was confronted by yet another challenge from a then-unfamiliar source, the Internet. Pioneering the legal future of the digital age, Mr. Garbus represented Eric Corley, The Electronic Frontier Foundation in the Open Source Movement in the first copyright case to be tried under the new Digital Millennium Copyright Act. That landmark case, involving the Motion Picture Association of America, became a battle where First Amendment and copyright values clashed, permanently affecting the art, movie, music and DVD industry, including the rights of MP3 and IPOD owners.
Mr. Garbus has represented Lenny Bruce against obscenity charges, best-selling writer Robert Sam Anson in a lawsuit claiming Michael Eisner and Walt Disney tried to stop the publication of a book critical of them, and Penguin Books against attempts by Lawrence Walsh, Special Council to Iran-Contra, to stop the publication of Jeffrey Tobin's book on Iran-Contra, and in a case which was tried in Illinois, he successfully stopped the unauthorized publication of the short stories of author John Cheever.
Mr. Garbus has earned his distinguished reputation as a result of his unique and aggressive approach in the courtroom. He is a master at every aspect of trial, from jury selection to cross-examination to closing arguments. His cases have established new legal precedents in the United States Supreme Court and Appellate Courts throughout the country. "He was also counsel in Ashton v. Kentucky, a Supreme Court that struck down all criminal libel laws, and Jacobellis v. Ohio, where the Supreme Court for the first time defined "national community standards."
Arguing before the United States Supreme Court after a trial in Alabama, he won a unanimous 9-0 decision striking down laws in 14 states that had disenfranchised 1,000,000 people. He filed in New York federal court Goldberg v. Kelly , a 5-4 decision of the United States Supreme Court that is arguably the most important due process case of the 20 th century.
He won a four-month class action securities fraud suit, successfully representing plaintiffs against one of America's largest corporations. He also won a jury trial in a Mississippi Federal Court on behalf of Britain's Channel 4 and the Public Broadcasting System involving claims that they used obscene photographs.
Mr. Garbus' passion for protecting the interests of his clients has been widely recognized. He was appointed to serve as the lawyer and/or executor and/or trustee of numerous estates, including those of Marilyn Monroe, Igor Stravinsky, John Cheever and Margaret Mitchell. Assuming an active role as guardian, he represented the Stravinsky Estate in a precedent-setting suit contesting the late author's will and the Mitchell Estate in a case involving a parody of "Gone With the Wind."
Mr. Garbus also represented Public Enemy No. 1, a hip-hop and rap group, for whom he won a copyright suit against the Coors Beer Company that wrongfully sampled its work in beer advertisements. He represented Miramax when the Motion Picture Association tried to give several of its films an "R" rating, tried and won before a federal jury, the Isley Brothers' accounting and infringement suit against Motown Records, and defended Terry McMillan in a libel suit. In addition, Mr. Garbus defended Peter Matthiessen and Penguin Books in libel suits filed in South Dakota and Minnesota by South Dakota Governor and Senator William Janklow and the FBI over allegations that the FBI wrongfully coerced testimony through physical abuse and that the Governor had raped an Indian woman.
In a civil antitrust action he successfully represented independent movie houses that sued the motion picture studios because of preferential treatment given to movie chains.
He also successfully represented Pia Pera, author of "Lo's Diary," in a suit brought by the Estate of Vladimir Nabokov to block publication of her novel and, through his former law firm, defended Scholastic Books, the publisher of the "Harry Potter" series, and NBA and Major League Baseball players seeking arbitration of their contracts.
He also defended murder cases in Nebraska, Minnesota, South Dakota and New York, and white collar cases, including defending one of America's leading scientists against a claim by IBM that he stole their secret computer codes.
Mr. Garbus has won freedom of speech suits against the U.S. government and defended numerous authors and publishers charged with defamation and libel. He defended an injunction suit filed in California against Spike Lee to prevent the release of "Malcolm X," and defended a suit against a trustee of the Martha Graham Center of Contemporary Dance involving copyright infringement of choreographed work.
During his legal career, Mr. Garbus has also represented and advocated on behalf of political dissidents such as Nelson Mandela, Vaclav Havel, Daniel Ellsberg and Andrei Sakharov. On behalf of Sakharov, and other Russian dissidents, he smuggled a list of political prisoners and their awful jail conditions out of the Soviet Union , personally delivering it in January 1980, two weeks before the inauguration, to then-President Jimmy Carter, who acknowledged this document as the beginning of his new American human rights policy.
Someone who knows of what they write.
Peace.
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