Senate Won't See All Roberts Memos

Federal appeals court judge John G. Roberts Jr. speaks after being introduced as President Bush's nomination to replace retiring Justice Sandra Day O'Connor Tuesday, July 19, 2005, at the White House in Washington. AP /APTN

Citing privacy and precedent, the Bush administration indicated Sunday it does not intend to release all memos and other documents written by Supreme Court nominee John Roberts when he worked for two Republican presidents.

The leading Democrat on the Senate Judiciary Committee, which will conduct hearings on Roberts' nomination, disputed the assertion that privacy was at stake and called such a position a "red herring."

Roberts worked in the Reagan White House counsel's office from 1982-1986. He also was principal deputy solicitor general in the administration of the first President Bush.

Fred D. Thompson, the former Tennessee senator who is guiding Roberts through the nomination process on behalf of the White House, said material that would come under attorney-client privilege would be withheld. He contended that previous administrations, both Republican and Democrat, have followed that principle.

"We hope we don't get into a situation where documents are asked for that folks know will not be forthcoming and we get all hung up on that," Thompson told NBC's "Meet the Press."

Attorney General Alberto Gonzales appeared more open to considering such requests, but he also cited concerns about "very sensitive, very deliberative information" that could be involved.

"Generally, that's not something that the administration or any White House would be inclined to share because it is so sensitive and does, in my judgment, does chill communications between line attorneys and their superiors within the Department of Justice," Gonzales said on "Fox News Sunday."

"That would be something that we'd have to look at very, very carefully," he said. "Rather than prejudge the issue, let's wait for the Judiciary Committee to make its requests, and then we can evaluate the requests and hopefully reach an appropriate accommodation."

The committee has yet to ask for such material. But some Democrats, including Sen. John Kerry of Massachusetts, have urged the White House to release "in their entirety" any documents written by Roberts.

Vermont Sen. Patrick Leahy, the senior Democrat on the Judiciary Committee, said other nominees, including Chief Justice William H. Rehnquist, have provided material they wrote in confidence while working in the Justice Department.

"It's a total red herring to say, 'Oh, we can't show this,"' Leahy told ABC's "This Week." "

"And of course there is no lawyer-client privilege," he said. "Those working in the solicitor general's office are not working for the president. They're working for you and me and all the American people."

Leahy and the Senate's No. 2 Democrat, Dick Durbin of Illinois, said Roberts' elevation to the Supreme Court called for a high standard of evaluation — higher than that when the Senate agreed to out Roberts on the U.S. Court of Appeals for the District of Columbia Circuit in May 2003.

The two senators split over Roberts in committee: Leahy voted in favor and Durbin against because of what he considered incomplete responses to questions.

"I want to ask him full and fair questions," Leahy said. "It's a standard I would have for any nominee to the Supreme Court."

Contending that documents could be an important part of the confirmation process when little is known about a nominee, Durbin said, "A lot has to do with whether or not you can fill in the empty vessel with the information that tells you about this person."

Another Judiciary Committee Democrat, Sen. Charles Schumer of New York, said the goal is to learn about Roberts' judicial philosophy and method of legal reasoning.

"This is not a game of 'gotcha,' and document requests and, in general, information requests, are not an end, a goal to prove something," Schumer said. "They're a means to simply determining Justice Roberts' judicial views. That's all we want."

Sen. John McCain, R-Ariz., said he thought some documents about work Roberts did in the solicitor general's office probably could be turned over, but not material from his time as a lawyer for the first President Bush.

"If we're going to set a precedent that those communications between someone who works for the president and the president of the United States are some day going to be made public, I think it could have a real chilling effect on the kind of candor in communications that people would have with the president," McCain said.
  • Sean Alfano

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