Judge Roberts's paper trail
The New York Times
MONDAY, AUGUST 8, 2005
A battle is brewing over whether the Bush administration is wrongly holding back information on Judge John Roberts Jr., the Supreme Court nominee. The short answer is: yes.
Senators have broad power to review documents as part of their constitutional advice and consent role. This includes the memos at the heart of the current dispute, which Roberts wrote as a high-ranking government lawyer.
For a man who has spent much of his life in public service, Roberts has a remarkably sparse public record. He has been involved in very controversial matters, like advising Governor Jeb Bush during the 2000 Florida recount, and he played a pivotal role in setting legal policy in the Justice Department of President George H.W. Bush. But he has largely operated behind the scenes, and there is little to indicate what he was thinking when he was doing this work.
The best indication of what kind of justice Roberts would be may be the memos he wrote when he was a top political appointee in the solicitor general's office, which represents the government before the Supreme Court. The written record could provide important insights into his approach to these subjects.
The White House has not produced these memos, and appears to be prepared to claim they are protected by attorney-client privilege. But the privilege does not apply. Attorney-client privilege is not a right of the attorney, but rather of the client - in this case, the entire United States. The current White House has no right to assert a privilege on behalf of the whole country. Even if it did, the attorney-client privilege applies to courts, not to requests from Congress.
Other records, including ones from Roberts's time as a lawyer in the Reagan White House, are being released too slowly. The administration is eager to have a quick vote on this nomination, but for that to happen, the Senate needs to be able to review these records very soon.
The information the administration has released so far has not only been limited, it has also been inconsistent. So far, the Roberts confirmation process has been proceeding in an atmosphere of unusual good will among various political factions. But the Bush administration should not presume that will continue - or that Roberts will be confirmed - just because things have gone well so far. The Senate should insist on being given all the information it needs to evaluate him before voting on his confirmation.
A battle is brewing over whether the Bush administration is wrongly holding back information on Judge John Roberts Jr., the Supreme Court nominee. The short answer is: yes.
Senators have broad power to review documents as part of their constitutional advice and consent role. This includes the memos at the heart of the current dispute, which Roberts wrote as a high-ranking government lawyer.
For a man who has spent much of his life in public service, Roberts has a remarkably sparse public record. He has been involved in very controversial matters, like advising Governor Jeb Bush during the 2000 Florida recount, and he played a pivotal role in setting legal policy in the Justice Department of President George H.W. Bush. But he has largely operated behind the scenes, and there is little to indicate what he was thinking when he was doing this work.
The best indication of what kind of justice Roberts would be may be the memos he wrote when he was a top political appointee in the solicitor general's office, which represents the government before the Supreme Court. The written record could provide important insights into his approach to these subjects.
The White House has not produced these memos, and appears to be prepared to claim they are protected by attorney-client privilege. But the privilege does not apply. Attorney-client privilege is not a right of the attorney, but rather of the client - in this case, the entire United States. The current White House has no right to assert a privilege on behalf of the whole country. Even if it did, the attorney-client privilege applies to courts, not to requests from Congress.
Other records, including ones from Roberts's time as a lawyer in the Reagan White House, are being released too slowly. The administration is eager to have a quick vote on this nomination, but for that to happen, the Senate needs to be able to review these records very soon.
The information the administration has released so far has not only been limited, it has also been inconsistent. So far, the Roberts confirmation process has been proceeding in an atmosphere of unusual good will among various political factions. But the Bush administration should not presume that will continue - or that Roberts will be confirmed - just because things have gone well so far. The Senate should insist on being given all the information it needs to evaluate him before voting on his confirmation.
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