Partisan Democrats and other Bush-haters will be glad to hear that the DC Circuit has rejected the Bush Administration’s claims of executive privilege over the records of the Cheney energy task force. But friends of the rule of law can’t be cheerful about the fact that it was a 2-1 ruling, with a Clinton appointee and a Carter appointee outvoting a Bush I appointee.
I haven’t a clue as to how the case should have come out as a matter of law, and I suppose it’s possible that all three judges would have ruled the same way if the case had involved, say, the Clinton health task force. But if the apparently party-line vote was merely a coincidence, it was a most unfortunate one.
The case for the proposition that the Senate ought to consider appeals court nominees on their “qualifications” rather than their “ideology” is greatly weakened by instances such as this one.