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.
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.