Left warm sunny Seattle with Cliff around 8:15am (PST) on a non-stop
flight to
Washington Dulles International Airport. Arrived in cool rainy
Washington D.C. around 4pm (EST). Took a shuttle (or what the recorded
voice referred to as a "mobile lounge", but I didn't see anyone serving
drinks) from the concourse to baggage claim, where we quickly collected our
luggage.
Then we went to the SuperShuttle desk to catch a shuttle to our
hotel. That was kinda chaotic, because first they said our vouchers
weren't prepaid, so I pointed out that they were, then they said OK but our
computers are down so wait here, then they said OK follow us so we can all
stand outside in the rain for a while (well, they didn't say that, but
that was the effect). After some further confusion involving the
precise destination of the first drop-off, which I helped them resolve by
loaning them my cell phone, StuporShuttle finally got us to
our hotel around 6:30pm.
Which, incidentally, is the
Club Quarters Hotel,
about 2 blocks from the
White House, and practically right on top of an underground
Metro
Station (see "Farragut West"). We were in room 1109, direct dial
202-974-4155.
Had some Italian food at
Luigi's (about 2
blocks west and 3 blocks north of the hotel) -- not the best lasagna I've
ever had, but still good. Then we came back to the hotel, descended
into the bowels of "Farragut West", purchased $5 fare cards, and the first
gate I walked through promptly ate my card. So I bought another card,
used a different gate, and we were off to "Capitol South" -- the Metro
station closest to the
Supreme Court.
After a quick ride on Metro, we arrived at "Capitol South" around
10:30pm, walked up First Street to the Supreme Court building, and were
surprised to see only one person in line, sitting at the bottom of the
steps, reading a copy of "War and Peace" to pass the time. For the
most popular Supreme Court cases, the line can start forming early in the
evening, or even late in the afternoon, so I took this as a sign that we
could risk going back to the hotel, grab a few hours sleep, walk back to the
Supreme Court, and still (hopefully!) be able to get in.
Woke up at 1:30am, groaned, got up, showered and dressed for the
2-mile-or-so walk back to the Supreme Court. Cliff had primed the
coffee pot in our room, so at least we had some coffee to help us wake up.
Walking was required because the Metro underground rail system shuts down
around midnight on weeknights. But the walk turned out to be
surprisingly pleasant, because the rain had finally stopped, there were
still clouds to keep it from getting too cold, the city was relatively
quiet, and all the historic buildings along Pennsylvania Avenue were
beautifully lit.
I did take some night-time shots of the Supreme Court Building, but it's
hard to get steady handheld shots, so I didn't take any during our
late-night walk down Pennsylvania Avenue.
When we arrived at the Supreme Court (around 3am), 4 more people had
joined the line, so unofficially I was number 6 ("I am not a number! I am a
free man!"). It became official some 4 hours
later, around 7:15am, when security moved us up to the landing between the
first and second set of steps, handed us numbered passes, and told us we
could visit the court's cafeteria and/or restroom, but that we shouldn't
take longer than 15 or 20 minutes. Around 9am, they started letting us
into the building, where we had to check all our belongings into lockers,
and then wait to be seated in the courtroom. That happened pretty
quickly, so I had about 45 minutes to gawk at the plush, ornate interior of
the room, and see if I could recognize anyone.
The Case We Heard
You can read about it on
CNN. We watched CNN's Bob Franken (and some guy from ABC news) do
their initial live reports while were were standing in line at the bottom of
the steps. You can also see pictures of them in my
Washington D.C.
Photo Album.
Here's a copy of what CNN posted today:
WASHINGTON (AP) -- The Supreme Court takes on
a nearly three-year dispute over the balance between confidentiality and
public scrutiny for government leaders Tuesday as it hears arguments
stemming from Vice President Dick Cheney's energy task force.
The Bush administration is asking the court to let it keep private the
records of Cheney's work on a national energy strategy. Opponents, including
government watchdog group Judicial Watch and the environmental group Sierra
Club, want the task force papers made public to see whether energy
industries influenced the formulation of national energy policy.
The White House is framing the case as a major test of executive power,
arguing that the forced disclosure of confidential records intrudes on a
president's power to get truthful advice.
At the Supreme Court, which will rule before July, the administration
finds a last hope in a dispute that began in July 2001 when Judicial Watch
sued over Cheney's private meetings. The case has never gone to trial, but a
federal judge ordered the White House to begin turning over records two
years ago.
The Bush administration has lost two rounds in federal court. If the
Supreme Court makes it three, Cheney could have to reveal potentially
embarrassing records just in time for the presidential election.
The Sierra Club accused the administration of shutting environmentalists
out of the meetings while catering to energy industry executives and
lobbyists.
Solicitor General Theodore Olson told the justices in court filings that
no energy industry officials participated improperly in meetings. He
maintains that forcing information about the sessions into the open violates
the separation of powers among the branches of government.
The Supreme Court also is known for private meetings.
"The court utilizes the process of confidential deliberation just as the
executive branch does. Memos are drafted, deliberations occur and drafts of
opinions are circulated -- all behind closed doors," said Kris Kobach, a
constitutional law professor at the University of Missouri-Kansas City. "In
both branches, deliberation is more candid, honest and valuable if it
sometimes is sheltered from public scrutiny."
Martin Shapiro, a Supreme Court expert at the University of California,
Berkeley, said while the court engages in private consultation, "the
justices are used to themselves making decisions on the basis of what they
hear from two sides publicly."
The case requires the court to clarify a federal open-government law.
All nine members were hearing arguments, despite a controversy over a
hunting trip Cheney took with Supreme Court Justice Antonin Scalia, an old
friend, weeks after the high court agreed to hear Cheney's appeal.
Scalia, the vice president and two of Scalia's relatives flew together on
a government jet to Louisiana for the duck hunt at a camp owned by an oil
rig services executive.
"If it is reasonable to think that a Supreme Court justice can be bought
so cheap, the nation is in deeper trouble than I had imagined," Scalia wrote
in rejecting the Sierra Club's request that he disqualify himself.
The case is Cheney v. U.S. District Court, 03-475.
My Thoughts on the Case
First of all, any thoughts I have on the case are just "armchair musings".
Nina Totenberg will almost certainly have an excellent summary of the
oral arguments (I saw her in the reporter's section of the courtroom).
In fact, it looks like she's
already reported on today's case.
Left to right, as you face the justices, the seating order was Ginsberg,
Souter, Scalia, Stevens, Rehnquist, O'Conner, Kennedy, Thomas and Breyer.
Surprisingly (to me), Breyer (not Scalia) may have been the most aggressive
questioner, but what made his approach markedly different from Scalia's was
that his questions were designed to elicit a particular distinction or a
more nuanced argument from a lawyer, whereas Scalia's questions were more
like opportunities for him to hammer his own opinion home (e.g., his
view of what Executive Privilege is) and then dare the lawyer to disagree
with him. I imagine that all the justices have
healthy egos, but Scalia's seems a bit too healthy -- and his refusal
to recuse himself has only reinforced that.
Other tidbits: Rehnquist elicited mild chuckles from the courtroom when
he acted very surprised by one lawyer's suggestion that the high court could
not (or would not want to) "tinker" with some part of the appeals court's
decision. O'Conner looked surprisingly frail to me -- much more so
than I remember from her last Charlie Rose interview -- but she was still
engaged and asked one or two questions. Thomas, on the other hand,
seemed totally "out of it", often leaning way back in his chair, either deep
in thought or distracted. He never said anything to the lawyers,
although I did see him lean over to Breyer once and whisper something in his
ear, which appeared to make Breyer poised to jump in with another question,
but there wasn't time -- as usual, Rehnquist stopped all arguments at the
one-hour mark and declared the case submitted.
As for which side of the fence the justices may fall, it was hard to
tell, but I'd probably give the edge to Cheney, unfortunately. The
government's lawyer, Ted Olson,
is very skilled at what he does -- more so than the younger lawyers who
argued for Sierra Club and Judicial Watch. It might have been Souter
who asked them (in effect) what they expected to gain if they prevailed, and
Judicial Watch in particular struggled with that. I suspect the justices may
have a hard time seeing a clear path through this constitutional minefield,
and may simply send it back to a lower court (with instructions?) and then
either force Cheney to actually exercise "executive privilege" (which he has
not done yet) or force him provide the documents requested as part of
the discovery process.
In my mind, Olson and the government clearly want to avoid turning this
case into an "executive privilege" case -- perhaps partly for political
reasons, and perhaps partly for fear of losing the privilege argument later
and thereby weakening executive privilege in the future, but this is total
speculation on my part. Instead, Olson focused on arguments such as: 1) the FACA (Federal Advisory
Committee Act) simply doesn't apply to this particular committee; 2) that
act doesn't provide for a "private right of action"; 3) there was no
involvement by outside parties as alleged, and even if there was
involvement, those parties could not be considered members (either actual or
"de facto"); and 4) both the act itself and the discovery process intrude on
the separation of powers.
One bizarre aspect of Olson's argument, which he mentioned many times,
was this notion of the "presumption of regularity" within the Executive
Branch. The argument seemed to be that, by default, we must assume
that everything that branch does is correct and cannot be questioned.
Perhaps this is just supposed to buttress the larger "separation of powers"
argument.
But I'd like to see a definition. If he's taking about the basic
legal principle of "presumed innocent until proven guilty", that's fine, but
that goes without saying. If he's instead suggesting that the
Executive Branch is completely beyond reproach, I'm not sure I understand --
it's been shown in the past that the Executive Branch is neither beyond
reproach nor outside the law, so what are the boundaries of this so-called
"presumption of regularity" doctrine? To suggest that we can't be
suspicious, and that we can't even ask for evidence that could either
support or dismiss our suspicions, sounds extremely, um, suspicious to me.
