Penumbrae, Ghosts and Other Liberal Weapons: Or, Plain ol' Shameful Innuendo

One expects the scurrilous and indefensible from the likes of NARAL's anti-Roberts campaign. But need we also expect it from the Knight Professor of Constitutional Law and the First Amendment at The Yale Law School? I'm afraid so.

Here, Prof. Jack Balkin decides, on the flimsiest of grounds, to raise the possibility that John Roberts might "have been a hitherto unknown part of the Iran-Contra scandal." That would of course be grounds for opposing him. But as you can plainly see from the only "evidence" behind this speculation, there is no evidence behind this speculation. I shared these thoughts with Prof. Balkin in his comments, but I'll repeat them here for the sake of those readers who might think I'm a little unfair with the liberal professoriate from time to time.

The article says this:

There are three reasons the papers were withheld under federal records laws, according to Archives officials. They include preliminary judgments by archivists that information in them would improperly invade a person's privacy (such as revealing a Social Security number), jeopardize law enforcement operations or potentially harm national security.

Under the ordinary course of business, archivists black out individual words or sentences before releasing a document. In this case, National Archives official Sharon Fawcett said, the rush to release a large volume of documents quickly did not allow enough time for surgical redactions -- so the entire page was pulled.

The White House involvement in this process is unclear. Fawcett said White House officials are allowed to offer input during the review process, but she would not discuss their involvement. Senior White House officials said administration lawyers typically examine the documents after the archivists complete the initial review, and they insisted they have not asked for any papers to be withheld that archivists did not first flag.

It's not clear how this translates into "The Democrats obviously want to know what is in those files; the Bush Administration doesn't want anyone to know" (the words are Balkin's, the emphasis is mine).

But, if one chooses to adopt that assumption, it permits one to speculate, without any foundation, that Judge Roberts might have abetted the breaking of laws while he was in the White House, as you do here.

Is there a level at which spouting this sort of innuendo seems inappropriate? Couldn't we wait until something more damning than this article comes out before raising the specter of participation in a major scandal?

I know my answers to these questions, and I'm afraid we now know Professor Balkin's as well.