Tussle Over Roberts' Documents

Risking a showdown with Democrats, the White House said Tuesday it won't release documents that Supreme Court nominee John Roberts prepared while working on cases to argue on behalf of the first Bush administration before the high court.

Senate Democrats said they were disappointed with the decision and hoped the Bush White House would change its mind when the Judiciary Committee decides what paperwork it needs.

"If the White House announcement is intended to begin a dialogue about documents, I welcome it," said Sen. Patrick Leahy of Vermont, the top Judiciary Democrat. "If it is intended to unilaterally pre-empt a discussion about documents the Senate may need and is entitled to, then this is a regrettable beginning."

Amid the wrangling over Judge Roberts' private papers, Senate Judiciary Committee Chairman Arlen Specter said that if he can't get an agreement for a final confirmation vote before September 29, he may start hearings during the last week of August. That would interrupt the Senate's traditional monthlong summer vacation.

CBS News Producer Mary Hager reports that Sen. Specter, R-Pa., wants assurances from the Democrats that the committee can vote on the nomination by that date so that Roberts can be sworn in and seated for the start of the court session, which starts October 3.

Hager reports that Sen. Harry Reid, D.-Nev., does not want to rush the process and that the ordinary procedure is to allow the committee time to do its work. He said that if the committee is only allowed to see the documents "we've seen in the New York Times and Washington Post, I think we need a little more than that."

The administration will release papers from Roberts' work in the Reagan administration but it will withhold files from his tenure as deputy solicitor general in the first Bush administration.

White House spokesman Scott McClellan said the administration will release more than 75,000 documents to the Senate Judiciary Committee, reports CBS Correspondent Peter Maer. "What we are providing goes above and beyond what a reasonable person would expect to be made available," McClellan said.

McClellan contends the documents are "more than sufficient for members of the Senate to do their job."

But he said the withheld files were part of "attorney-client privilege and a confidential deliberative process" when Roberts worked for then-Solicitor General Kenneth Starr.

Leahy had said earlier that material written in confidence while serving in an administration has been provided in the past — for instance by Reagan when he nominated William H. Rehnquist for chief justice.

"It is far too early to know whether the committee will need those documents and I hope the White House will keep an open mind on document requests," said Sen. Charles Schumer, D-N.Y., a member of the Judiciary Committee.

"The Senate should see all relevant material related to Judge Roberts' nomination. We trust that members of the Judiciary Committee and the White House will work out a way for the Senate to review this material," said Rebecca Kirszner, spokeswoman for Senate Democratic leader Harry Reid of Nevada.

But McClellan said that providing such documents would violate attorney-client privilege and have a chilling effect on the decision-making process in the solicitor general's office.

"Democratic and Republican solicitor generals have said that to make that information available would really stifle their ability to have a candid and independent and honest assessment from attorneys in their office," he said. "These future solicitor generals might as well put up a sign that says `do not apply' if you are thinking about going through a Senate confirmation process."

Attorney-client privilege allows communications between lawyers and the people they represent to remain confidential. Executive privilege is the right claimed by presidents to decline some requests, including for production of documents, from Congress and the courts, based on the Constitution's separation of powers.
With Mr. Bush's first chance to shape the Supreme Court at stake, the White House is hoping to avoid the kind of confrontation with Democrats over document requests that has stymied Senate confirmation of some of the president's other high-profile nominees. Asked repeatedly to say whether the administration was open to making Roberts' writings as a former administration lawyer available, McClellan avoided saying "no" outright on Monday.

He took a harder line Tuesday.

The documents issue could be critical as the Senate prepares to decide whether to confirm Roberts as the president's replacement for retiring Justice Sandra Day O'Connor.

Democrats have offered no indication that they plan an all-out battle against Roberts. But since his two-year tenure on the federal bench has left him with a limited public record, they have hinted they may seek memos, briefs and other documents he wrote as an administration lawyer in the Reagan and first Bush administrations to shed more light on his stands on such issues as abortion, the environment and federal jurisdiction.

Sen. John Kerry, D-Mass., last week called for the White House to release all of Roberts' working papers from his time during the Reagan and George H.W. Bush years. Democrats on the Judiciary Committee have not yet revealed which documents they will ask for.

Sen. Joseph Lieberman, D-Conn., one of the centrists who stopped an earlier Senate fight over Mr. Bush's judicial nominees, urged the White House to be flexible with document requests.

"I'd hate to see us get into a battle over whether the administration was going to share documents instead of the basic question of, 'Is Judge Roberts deserving of confirmation to be a justice of the United States Supreme Court,'" Lieberman said Monday after meeting with the nominee.

Sen. Dianne Feinstein, D-Calif., suggested Monday she didn't think his solicitor general memos would be very important "unless it relates to confirming something that becomes a major question."