The Roberts Memos and Nomination Process

Supreme Court nominee John Roberts served in the executive branch of the federal government in three roles:

• 1981-1982, Special Assistant to the U.S. Attorney General
• 1982-1986, Associate Counsel to the President
• 1989-1993, Principal Deputy Solicitor General

The Senate has asked for papers written by Roberts in these roles to help them to "advise and consent".

The White House has turned over memos from his first two roles but refused to for his time in the Solicitor General's office. The rationale given is attorney-client privilege, that such internal memos are key to the solicitor general's deliberations over legal strategy, and releasing them would damage traditional privilege. I'm no expert on these roles but I would have thought that counsel to the president would be closer to a role that deserved the protection of privilege. After all, the solicitor general represents the government in cases before the Supreme Court. Last week Democrats asked for documents from 16 of the more than 300 cases Roberts worked on while Deputy Solicitor General but the Justice Department refused saying it was "simply contrary to the public interest" to release the material.

But of course, they're lying. As Senator Patrick Leahy (D-VT) points out, there's precedent for tuning over the papers as Chief Justice William H. Rehnquist, former federal appellate judge Robert H. Bork, former Atty. Gen. Edwin Meese III and others had given up documents written while they worked for the Justice Department. "Those working in the solicitor general's office are not working for the president," Mr. Leahy told George Stephanopoulos on the ABC News program "This Week." "They're working for you and me, and all the American people."

And it seems attorney-client priviledge doesn't apply to Congress. To quote former Senator Fred Thompson, who is sheparding Roberts nomination for the White House "An invocation of attorney-client privilege is not binding on Congress. It is well established that in exercising its Constitutional investigatory powers, congress possesses discretionary control over a witness' claim of privilege. It is also undisputed that Congress can exercise its discretion completely without regard to the approach the courts might take with respect to that same claim." He said this when Clinton tried to invoke it. Times do change.

I would think these memos would be subject to a Freedom Of Information Act request. it doesn't seem to be covered by any of the 9 exemptions in subsection (b). But if anyone can tell me why they aren't, I'd appreciate it.

The other question I have is why can't you ask a nominee about previous (landmark) decisions that they must have an opinion on? Every law student must study Roe v Wade and must have an opinion on it. Why shouldn't they have to explain their position as they would have in law school? The usual argument is that it might bias a future decision in a similar area, but that doesn't make any sense to me. First of all, if they are going to bias an opinion based on what they think, whether they speak about their biases or not doesn't change if they have them. Second, I'd hope a Justice could work past a bias they had, and if they can't, isn't that relevant to their appointment?

Roberts so far seems like he would make a good Justice. But of course we're not done looking into him. Ross Perot seemed good to me when he announced his run for President, but once he started talking it became clear I wasn't going to like him. We have to learn more about Roberts before we (ie the Senate acting for the people) can make an informed decision. And it should be the role of the White House to help us do this, he's their nominee.