Publish and Perish? The Legal Times Article at the Heart of a Confirmation Battle

Ever since Robert Bork’s nomination to the Supreme Court was defeated in 1987, there has been considerable worry over how a judicial nominee’s written “track record” can work against them. The more someone writes, the more chances there are that what they write will offend a critical constituency (as it did with Bork) and lead to their defeat. The worry, of course, is that we are diminishing the chances of getting the best nominees for the courts if we make confirmation risky for anyone who has published significantly and, by being forthcoming, made important contributions to the law.

Now, in an interesting situation before the Congress, this tendency has been extended to include a nominee to become deputy Attorney General. James Cole, a partner at Bryan Cave, received the backing of the Judiciary Committee last summer but confirmation by the full senate has been held up because of an article he wrote in 2002 for Legal Times. The critical idea Cole expressed there was his belief, hardly novel, that terrorism cases should more appropriately be tried in the civilian courts.

In the article, Cole makes an interesting historical analogy that gets at the root question in the argument over whether the “War on Terror” is a “real” war like those we have known through history or a metaphorical war like the “War on Drugs” or the “War on Poverty.” Even though our “real” wars have involved state on state belligerence and the “War on Terror” is against non-state actors with loose affiliations with any group at all, much less a state with an army, the fact that such terrorism is intended to undermine the state through violence and is supported in part by hostile foreign governments has made it at least a little bit easier to equate the fight against them with a traditional war. But in the article, Cole asked us to look at the story of Manuel Noriega, the Panamanian leader who was arrested during the Bush 41 administration under the policies of the “War on Drugs” and brought to a civilian trial in Florida. Here was a “war” where few questioned the appropriateness of the civil courts for the prosecution. Noriega was tried in the federal system, and, like any other criminally accused party, had access to counsel, a trial by jury, and the right to cross-examine his accusers. Why, Cole asked, should the “War on Terror” be any different?

Interesting as Cole’s argument may have been back then, eight years later it has put his nomination as deputy AG in jeopardy. Two critical opposition voices are those of Sen. Jeff Sessions (R-AL) and Sen. John Cornyn (R-TX). Both have used Cole’s article to center discussion around the civilian courts versus military tribunals argument and while Cole has entered some nuance into his position, adopting the Obama administration’s approach that sees Article III courts as appropriate for some cases and military tribunals for others, his opponents aren’t buying it. Session has been forthright. “You capture enemies, you arrest criminals,” he told Cole. “It’s clear to me that anyone associated with Al Qaeda that’s captured can be treated as a prisoner of war and we don’t provide lawyers or trials to prisoners of war.” Meanwhile, Cornyn focused his questioning last summent on an aspect of this argument that will be debated in the Peter Jennings Project moot court this coming March: the appropriateness of using Miranda rights in terrorism cases.

Majority leader Harry Reid has pledged to get Cole’s nomination to a full vote before the end of this lame duck session of Congress, knowing that if it is delayed until the arrival of the next Congress in January, he will have an ever harder time pushing it through. Meanwhile, Cole may be ruing the day back in 2002 when he penned his thoughts for a legal journal.

TB

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