August 7, 2005
Judge Roberts's Paper Trail

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.

August 7, 2005
Judge Roberts's Paper Trail

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 Judge Roberts wrote as a high-ranking
government lawyer.

For a man who has spent much of his life in public service, Judge Roberts
has a remarkably sparse public record. He has been involved in very
controversial matters, like advising Gov. 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 Judge 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. He held that job during the administration of the first President
Bush, when the office weighed in on major civil rights, religion and
abortion cases. 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. After the
nominations of William Rehnquist and Robert Bork, among others, Congress
sought and received similar documents.

Other records, including ones from Judge 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. The White House insisted Judge
Roberts had never been a member of the Federalist Society, a conservative
legal group, and went so far as to demand corrections from newspapers
that said he was. But it then turned out he had been listed in a
Federalist Society directory as a member of one of its steering
committees. Judge Roberts also failed to mention, in a lengthy response
to a Senate questionnaire, that he had been a lobbyist for the cosmetics
industry.

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 Judge
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.

http://www.nytimes.com/2005/08/07/opinion/07sun1.html?oref=login