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July 29, 2005




President Bush's nomination of John Roberts to the Supreme Court has received generally good reviews, but Senate Democrats are demanding the release of papers that Judge Roberts wrote during his years as Deputy Solicitor General under the first President Bush. They say this will help them decide what positions Roberts is likely to take as a Supreme Court Justice. Many of them also hope the papers will provide ammunition to oppose the Roberts nomination.

The Bush Administration has released some of the Roberts papers from his earlier government service, but it argues that releasing the Solicitor General papers would make government lawyers wary of giving candid advice, for fear their private recommendations would not stay private. The Administration cites executive privilege and attorney-client privilege. It is not the first time a White House and a Congress have clashed over this.

There is no Supreme Court case establishing to what extent, if any, a government lawyer has any attorney-client privilege. Congress on the other hand traditionally does not recognize attorney-client privileges for government lawyers. So just how far will the Senate go to get documents? History may be a guide. William Rehnquist had no judicial experience when he was nominated to the Supreme Court in 1971. So the Senate asked for documents from Rehnquist¹s time as the Justice Department¹s chief lawyer. But the Nixon White House refused to provide them‹and the Senate confirmed him anyway. 15 years later when then Associate Justice Rehnquist was nominated to be Chief Justice the Senate asked for internal memoranda he wrote while he was a Supreme Court Clerk. This time the Reagan White House supplied them.

In 1987, when Judge Robert Bork was nominated to the Supreme Court, it was his Watergate Era work as Solicitor General that most interested senators. The government supplied some of the requested documents establishing what some claim was precedent. Nonetheless, Bork ultimately failed to win Senate approval for reasons unrelated to the documents.

It was the nomination of Miguel Estrada by President Bush to the U.S. Court of Appeals in Washington in 2001 that drew the most recent line in the sand. Estrada, like Rehnquist, had no judicial experience. Democratic members of the Senate asked to see some of his memos written while he was a government lawyer in the solicitor general's office. The White House refused citing confidentiality. In sort, privilege. Estrada quit his confirmation fight after it dragged on for more than two years over other issues and the case for or against privilege was never resolved.

Joining me to discuss all this are Bret Stephens, a member of the editorial board, Kim Strassel, a senior writer for the editorial pages, and John Fund, who writes for Opinion and is closely following how the Senate handles the Roberts nomination.

John, the White House turned over more than 70,000 documents this week related to Roberts' work in the Reagan Administration, was this a smart move?

JOHN FUND: Paul, all of those documents came from his years working for Reagan and what happened is the White House says its hands were tied because the Clinton Administration had waived executive privilege on those documents. Now they're saying we're not going to give you any more from the Bush years when he was deputy solicitor general. The problem is they've undermined their own case. When you give 70,000 documents I don't think you can make a clear philosophical distinction between the Reagan papers and the Bush papers.

PAUL GIGOT: Why shouldn't the Senate have the right to see these documents? I mean we are learning some things about John Roberts, Bret.

BRET STEPHENS: Well, the biggest reason is that John Roberts had an obligation when he was deputy solicitor general under the first President Bush to give the solicitor general and the president candid advice. Now if our government is going to function efficiently, if the executive is going to function efficiently lawyers working for the president have to know that they can give candid advice and that this material isn't going to appear 15 years later on the desk of Senator Chuck Schumer of New York.

If you allow that, if you allow Congress to see those documents what it's going to do is it's going to send a message to every other lawyer saying be careful about what you say even in closed hall because it's going to come back to bite you and presidents will not get the best advice they can get.

PAUL GIGOT: Let's be clear about what the solicitor general does. This is the office in the Justice Department that argues cases before the Supreme Court and is supposed to think about things which are constitutional matters, constitutional questions. So it's not just political tactical maneuvering. And you presumable, Democratic administration, Republican administration, wants advice on what is the right constitutional argument, right John?

JOHN FUND: And the media coverage of the 70,000 pages has already been very much distorted. Remember he was arguing in the case of busing. He said the Congress had the right to strip the courts of the power to bus school children. Then he said it would be bad legal policy. But all of the reporting has said Roberts supported courts being stripped of their powers. He didn't say that. He said it would be legal -- he didn't say it would be prudent.

KIM STRASSEL: But also, you're further discouraging people from going to work for the president in the first place. It's not just a question of getting bad advice from the people who are there. But if you're a young lawyer and you have ambitions to one day serve on a court somewhere you're not going to want to go put yourself in a position for a job where one day all the things you say can be dragged out and used against you.

PAUL GIGOT: What about this White House distinction between the Solicitor General's office they're withholding documents from, but they provided them from when Roberts worked in the White House Counsel's office which is of course the heard and soul of the executive branch. Did they undermine their argument as John claimed?

BRET STEPHENS: Yeah, I think that's exactly right. It's a very difficult distinction to make. After all, you have a lawyer who's working for the executive branch of government, whether he's doing so in one arm or another is a bit irrelevant, and this has created a tremendous opening for the Democrats to say okay, the White House isn't providing us with documents, they're stonewalling and they're going to drag out the nomination.

JOHN FUND: But having said that there is a silver lining for the White House. A lot of people would have said that Roberts was a complete stealth nominee if none of these documents had come out. Now we have a pretty good sense of his judicial philosophy circa 1985, we have a pretty good sense of how his mind works. Frankly it's all out on the table and there's nothing remarkable here. The average American looking at John Roberts' arguments would say a lot of that makes sense and the rest of it is in the mainstream.

PAUL GIGOT: Is this a partisan argument this attorney-client privilege, executive privilege argument or have Democratic presidents tried to invoke it as well.

JOHN FUND: That's all Bill Clinton's second term was about.

BRET STEPHENS: That's absolutely right. Solicitor generals going back to the Kennedy Administration would tell you that it's important to have this kind of attorney-client privilege apply in executive discussions.

JOHN FUND: Seven solicitors general serving administrations from Kennedy through Clinton all wrote when Miguel Estrada was going to have these documents demanded of him this would be a fundamental undermining of the president's ability to get sound advice. Seven solicitors general.

PAUL GIGOT: Of course Roberts was nominated for the same court as Estrada, the Appellate Bench of the D.C. Circuit and while they asked Estrada for his documents they didn't ask for Roberts' documents at the time. But now they're saying because it's a higher court that they do have the right to look at those.

KIM STRASSEL: Let's remember how much is actually out there. Two years ago he was nominated for the D.C. Circuit, he gave 14 hours of testimony for the Senate. He provided more than 100 pages worth of written answers to questions that had been given to him by the Senate Judiciary. We've got 75,000 pages of documents, we've got 300 cases he worked on while he was on the D.C. Circuit. Anyone who suggests, I mean this is more than enough information, as John said, to judge whether or not he's qualified to do this job and to get a sense of his judicial philosophy. The fact that people are still asking for things is simply because they're looking for some smoking gun.

PAUL GIGOT: What do the documents tell us substantively about what Roberts thinks about judicial issues that we didn't know?

BRET STEPHENS: There are no great surprises about the way he thinks. What comes across is a very clever lawyer, smart, very funny. One issue that I think is particularly relevant is how the courts would handle War on Terror issues. In 1984 there was a motion to try to impeach, this is a bit ridiculous, but to try to impeach Ronald Reagan for the invasion of Grenada and we have, I have here, the brief that Roberts wrote in response to it. And what he said, which was key, is he said the president also has an inherent authority in the international area to defend American lives and interests and as commander in chief to use military force in doing so. This has been recognized at least since the time President Jefferson sent the Marines to the shores of Tripoli. I think that tells us something about his jurisprudence of the War on Terror.

PAUL GIGOT: John, any other issues that are likely to emerge from these memos that will complicate his nomination?

JOHN FUND: Well, the civil rights community is up in arms over some members he wrote on the Voters Rights Act which requires a dozen southern western states to pre-clear, to ask permission from the federal government if they make any change to their voting rules. And he made a very reasoned argument that you don't want to bog down the Justice Department with every single little complaint that the Justice Department process should be fast-tracked, but still give full review. And they're going to say this shows he's an enemy of civil rights.

KIM STRASSEL: I think the bigger point here is that we're not learning anything that we didn't know before. In President Bush's campaign, he told people what kind of nominee he wanted for the Court, who he admired on the Court and he has come out and basically put that sort of nominee forward. We know this is someone that's going to have a great respect for the literal reading of the Constitution, be deferential to executive power, has a lot of respect for state rights. None of this is actually a surprise.

BRET STEPHENS: I think the Republicans are making a mistake by trying to run a stealth nominee. We should have a discussion about this. The president did win the election and he shouldn't be ashamed to nominate a conservative strict constructionist to the Court.

PAUL GIGOT: John, quickly, a week after the Roberts nomination are his chances better or worse after this last week?

JOHN FUND: More complicated but the same -- pretty good.

PAUL GIGOT: Okay. Alright, thanks John.