Supreme Court Nominee John G. Roberts:
How Many Of His Government Records Can Be Hidden From the Senate?

Remarkably little is known about Supreme Court nominee John G. Roberts, other than the bare bones of his resume. Although he was recently confirmed for the U.S. Court of Appeals for the District of Columbia Circuit, that confirmation hearing did little delving. So far, he has written only about forty opinions in his two years on the appellate court, on largely mundane legal matters. Thus, his judicial philosophy remains essentially unknown.

For this reason, several members of the Senate Judiciary Committee have said they will seek copies of documents that Roberts prepared as a government attorney in the Reagan and Bush I administrations, to see if these documents provide evidence of Roberts's thinking. Of particular interest are Roberts's years in the Office of the Solicitor General, for nowhere in the Executive Branch is there more thinking done about the High Court.

The Bush White House, and those speaking on behalf of the Administration, initially said that they would refuse to turn over documents, claiming attorney-client privilege. Apparently reminded that as Independent Counsel, Ken Starr pretty much made a nullity of that privilege for government attorneys, the White House later said that some documents would be made available, but not all.

In support of its position, it cited as precedent the rules that had governed the hearings of past government attorneys who have been selected for the high bench (Rehnquist, Bork, and Scalia). The problem is, it turns out that existing precedent -- in particular, precedent from the Bork hearings, the more recent of the three, cuts the wrong way for the White House.

Document Demands And Responses

Republican Senator Arlen Specter of Pennsylvania, as chairman of the Senate Judiciary Committee, requested Roberts's documents from his tenure as an assistant to the Attorney General and an assistant counsel in the Reagan White House. The Bush White House did not resist the request.

In fact, it is not clear that the Administration could have, since these records are covered by the Presidential Records Act, and most of them reside in the Reagan Presidential Library in California.

In addition, The New York Times reports that Judge Roberts's documents from the period, 1981-1982, where he worked as Attorney General William French Smith's assistant, will be released by the National Archives.

Judiciary committee chairman Arlen Specter did not request the documents from the years Roberts worked for Solicitor General Ken Starr, as his top deputy. And the Bush administration has made clear they will not release these records from the Solicitor General's office.

Unlike the other records, these are not covered by the Presidential Records Act. Rather, they are considered "sensitive, deliberative, confidential" exchanges among government lawyers preparing cases to take to the Supreme Court. According to the Administration, they will therefore not be produced.

But, again, as the ranking minority member of the Senate Judiciary Committee, Senator Patrick Leahy of Vermont, has stated, the Bush administration's position is contrary to precedent. During the confirmation hearings of former Solicitor General Robert Bork, then a judge serving, like John Roberts, on the District of Columbia Circuit, records from Bork's time at the Solicitor General's office were made available.

A Rehnquist Redux

The New York Times stated that "[T]he Nixon administration refused to release documents from the solicitor general's office when it came to the nomination of William H. Rehnquist to the Supreme Court," the New York Times noted.

In fact, however, Rehnquist was not in the SG's office. He had served in the Office of Legal Counsel, which has traditionally been considered "the president's law office." Arguably, the papers of the OLC are more sensitive than those of the SG's office, which is the law office for the United States, not the President.

Here's how things played out in1971, when Rehnquist was nominated as an Associate Justice to the Court:

Rehnquist invoked attorney-client privilege as to the OLC documents. (This was a dubious position at the time. And today, such a privilege does not exist when it comes to government attorneys; decisions arising of out of the Starr investigation have made that clear.)

Senator Birch Bayh of Indiana, a ranking member of the Senate Judiciary Committee, sent a letter to President Nixon requesting that the privilege be waived. That letter landed on my desk, with a copy to Attorney General John Mitchell.

I called Mitchell. He did not want to waive the privilege, although he had not even bothered to check Rehnquist's files. That ended the matter, and Rehnquist was confirmed.

In 1986, when President Reagan nominated Rehnquist to be moved to the center chair, to sit as chief justice, the Democrats on the Senate Judiciary Committee, again requested access to Rehnquist's OLC documents. Not only Democrats wanted to see these documents; several Republicans (who controlled the committee) also wanted to see Rehnquist's writings from that earlier era.

To make it clear that if the Senate committee subpoenaed the documents, they would not be forthcoming, President Reagan invoked executive privilege vis-à-vis the documents as well. Since OLC advises the President, Reagan argued that executive privilege covers OLC documents.

This was a time when the U.S. Congress still had institutional pride. When the Senate Judiciary Committee made it clear that it was not backing down -- a stance that would indefinitely delay Rehnquist's nomination, as well as Antonin Scalia's, which was also pending -- the Reagan White House backed down instead.

A compromise was reached. Senator Charles Mathias of Maryland, an attorney, along with an attorney on the staff of the Senate Judiciary committee, would be given access to Rehnquist's records as the head of the Office of Legal Counsel.

Snookered By A Pig In The Poke

Not surprisingly, Senator Mathias found nothing remarkable in the Department of Justice material. I say it was no surprise based on what he was given access to review.

The New York Times obtained access to, and published, an index of the materials. The index covers seven broad topic areas:

I - Laird v. Tatum, a ruling on military surveillance by the Supreme Court in which Rehnquist participated but later disqualified himself because he had testified for the government earlier;

II - Reform of the Classification System and Investigation of Leaks;

III - May Day [Demonstration] Arrests;

IV - Kent State Killings;

V - Judicial Nominations;

VI - Wiretapping; and

VII - Ellsberg Matter.

After scanning the documents under these provocative headings, several of which were addressed to me, I realized I could have saved Senator Mathias the trouble of his time.

I recognized many of the documents listed in the index, with lengthy memoranda for which Rehnquist often prepared a summary. It appears the Senate was only given access to summaries in some instances, so it is not exactly clear what was given to the Senate, and what was withheld.

More importantly, now, at the end of the Chief Justice's career, it serves no purpose to even characterize the material that was not seen. Suffice it to say that based on my knowledge of some of the documents that were withheld, I am confident that someday, when historians have access to that information, it will be clear that the Senate was snookered. They were offered, and apparently bought, the proverbial pig in a poke.

I note this because I believe the Senate has the right to look at Judge John Roberts's papers when serving as a senior official in the Office of the Solicitor General. And if the Senate Judiciary Committee insists they be given access to those papers, the mistake that was made with the Rehnquist papers -- of accepting a pale shadow of what was agreed to be provided -- should not be repeated.

The Senate's Right To Inspect Judge Roberts's Papers

The Clinton administration, as readers may recall, was plagued by the refusal of the Republicans in the Senate to process the president's judicial nominees for any number of spurious reasons. At end of Clinton's tenure in office, a panel of former high- ranking government officials along with eminent members of the bar gathered to examine the selection process for federal judges and justices. In 2000 they issued their Report of the Task Force on Federal Judicial Selection.

This report sets out clear parameters for both the executive branch, and the Senate confirmation proceeding, for the federal bench -- judgeships low and high. The Task Force found "it is both appropriate and important … to ask questions designed to flesh out a candidate's underlying philosophical and normative [what ought to be] commitments." Questions about "justice," "reasoning," "constitutional values," and "leading cases in our legal culture" are in order.

What is not appropriate, according to the Task Force's Report, is to ask about how a judge or justice "would vote on an unresolved case or issue that could come before" them. If such a question were asked, the Task Force advised nominees to "decline to answer … on the ground that it seeks an inappropriate precommitment."

It is difficult to think of anything that might better inform the Senate about Judge John Roberts's attitude and philosophy than those likely to be found in the files of the Solicitor General's office. The Senate committee might also call upon Ken Starr to testify about these matters, as Judge Roberts's former superior, as Solicitor General.

But given the fact that Judge Bork provided such information during his confirmation hearing, why should not the same sort of information be provided about Judge Roberts's work in the SG's office?

As with Rehnquist's nomination to be chief justice, if the Senate wants the information, and the Bush White House wants to get Roberts confirmed, they will provide it. And if the Senate is smart, it will press for better information from the Bush White House, than the Nixon White House gave.

(It should be noted that not all presidents, or at least not President Nixon, actually want their nominees selected. Some might rather have the political benefit of the Senate turning down a qualified nominee. For example, when Judge Clement Haynsworth was rejected by the Senate, Nixon sent them an unqualified nominee who was also rejected, Judge Harold Carswell. Nixon was delighted, for after the rejection, he could claim that the Democrats would not let him put a Southern "strict constructionist" on the Supreme Court. Ironically, when Nixon did succeed in getting Minnesotan Judge Harry Blackmun on the Court, it would result in Roe v. Wade, a ruling that is to much of the South what the Dred Scott ruling once was to much of the North.)

Resolution Of The Solicitor General's Papers Prepared By Judge Roberts

One of the most striking features of the Congress under Republican leadership has been its complete lack of institutional pride. As long as the Republicans have the votes, they have been nothing but arms of the White House on Capitol Hill.

In short, it is not likely the Senate (either Democrats or Republicans, let alone both together) will insist on reviewing Judge Roberts's work in the Solicitor General's office. Indeed, I doubt that the Republican leadership would let Judiciary Committee chairman Arlen Specter insist on production of these papers, even if he believed the Senate should see them.

In the event the Senate does get access to these important papers, however, they should not once again buy a pig in a poke. They've been there and done that with Rehnquist. It was an easy mistake the first time. If it happens again, it will be simple stupidity, which is not becoming of any member of the U.S. Senate.